Byorth et al v. USAA Casualty Insurance Company et al

Filing 57

ORDER granting 53 Motion to Appear Pro Hac Vice Acknowledgment of PHV Order due by 1/17/2019. Signed by Magistrate Judge Timothy J. Cavan on 1/2/2019. (JDR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
PETER BYORTH and ANN
McKEAN, on behalf of themselves and
all those similarly situated,

CV 17-153-BLG-TJC

ORDER
Plaintiffs,
vs.
USAA CASUALTY INSURANCE
COMPANY and JOHN DOES I-X,
Defendants.
Plaintiffs move for the admission of David Breskin and Brendan Donckers
to practice before this Court in this case with J. Devlan Geddes, Trent Gardner,
Jeffrey Tierney, and John Heenan to act as local counsel. Defendants oppose the
motion as to David Breskin. Mr. Donckers’ application appears to be in order and
is unopposed.
Defendants argue Mr. Breskin’s application omitted two incidents where he
was sanctioned. L.R. 83.1(d)(3)(G) requires a pro hac vice applicant to state,
under penalty of perjury, whether the applicant has ever been held in contempt,
otherwise disciplined by any court for disobedience to its rules or orders, or
sanctioned under Fed. R. Civ. P. 11 or 37(b), (c), (d) or (f) or their state equivalent.

It appears Mr. Breskin was sanctioned in 2001 and 2007 by the United States
District Court, Western District of Washington.
In 2000, he was sanctioned under the inherent power of the court based on
conduct during settlement conferences and subsequent proceedings before the
court. See Ebeling v. United Airlines, Order, May 2, 2000, No. C97-347C. The
sanctions imposed in 2000, however, were vacated upon Mr. Breskin’s motion in
2001. Ebeling, Order, Nov. 27, 2001, No. C97-347C.
Mr. Breskin was also sanctioned by the court in 2007 for violating Fed. R.
Civ. P. 30(d)(1) by instructing a witness not to answer a question during a
deposition. Reinsche v. Cingular Wireless, et al, Minute Order, Dec. 5, 2007, No.
C06-1325Z. In the minute order imposing sanctions, the court cited Fed. R. Civ. P.
37(a)(4)(A) (now Fed. R. Civ. P. 37(a)(5)), which provides for sanctions in
connection with a motion to compel discovery.
Mr. Breskin maintains that he was not required to disclose these previous
sanctions under L.R. 83.1(d)(3)(G). He points out that the sanctions imposed in
2000 were vacated, and the sanctions in 2007 were not imposed under any of the
sections listed in the rule – Fed. R. Civ. P. 11, 37(b), (c), (d), or (f).
Mr. Breskin’s interpretation of the rule is not unreasonable. The Ninth
Circuit has held that to vacate means to nullify or cancel. United States v. Crowell,
374 F.3d 790, 792 (9th Cir. 2004.) See also Massachi v. Astrue, 486 F.3d 1149,

1154 (9th Cir. 2007) (finding a vacated decision means it no longer exists). Here,
the sanctions imposed on Mr. Breskin in 2000 were subsequently vacated by the
court. In addition, the sanctions imposed in 2007 were imposed pursuant to Fed.
R. Civ. P. 30(d) and 37(a), not the sections specifically listed in the rule.
While it may have been prudent to err on the side of over-disclosing any past
sanctioned conduct, the Court cannot find that Mr. Bleskin violated the strict
requirements of the rule. In addition, the conduct was remote, and apparently not
sufficiently serious to generate any additional disciplinary action. Mr. Breskin’s
application otherwise appears to be in order.
Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ motion to admit
David Breskin and Brendan Donckers pro hac vice (doc. 53) is GRANTED on the
condition that they shall do their own work. This means that they must do their
own writing, sign their own pleadings, motions, and briefs, and appear and
participate personally. Counsel shall take steps to register in the Court’s
electronic filing system (“CM-ECF”). Further information is available on the
Court’s website, www.mtd.uscourts.gov, or from the Clerk’s Office.
IT IS FURTHER ORDERED that this Order is subject to withdrawal unless
Mr. Breskin and Mr. Donckers, within fifteen (15) days of the date of this Order,
///
///

file a pleading acknowledging their admission under the terms set forth above.
DATED this 2nd day of January, 2019.
_______________________________
TIMOTHY J. CAVAN
United States Magistrate Judge