Phillips v. State Bar of Nevada et al

Filing 64

ORDER denying without prejudice 43 Motion to Vacate. Signed by Magistrate Judge Carl W. Hoffman on 3/3/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DAVID LEE PHILLIPS,

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Plaintiff,
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vs.
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STATE BAR OF NEVADA, et al.,
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Defendants.
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__________________________________________)

Case No. 2:16-cv-00412-GMN-CWH
ORDER

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Presently before the court is Plaintiff David Lee Phillips’s Motion to Vacate Order Denying

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Plaintiff’s Motion to Disqualify Defense Counsel (ECF No. 43), filed on August 4, 2016.

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Defendants State Bar of Nevada and State Bar of Nevada Board of Governors filed a response

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(ECF No. 47) on August 30, 2016. Plaintiff filed a reply (ECF No. 49) on September 8, 2016.

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I.

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BACKGROUND
Plaintiff filed a complaint (ECF No. 1) on February 26, 2016, and an amended complaint

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(ECF No. 17) on March 15, 2016. Plaintiff subsequently filed a motion for disqualification of

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opposing counsel (ECF No. 22). Given that no defendants had answered or otherwise appeared in

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the case, the court denied the motion as moot. (Order (ECF No. 23).) Defendants then filed a

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motion to dismiss, arguing that Plaintiff failed to timely serve them with process under Federal

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Rule of Civil Procedure 4(m). (Mot. to Dismiss (ECF No. 25).) Plaintiff now seeks to renew his

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motion to disqualify Defendants’ counsel, arguing that by filing the motion to dismiss, Defendants

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made a general appearance in the case. (Mot. to Vacate Order Denying Pl.’s Mot. to Disqualify

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Def.’s Counsel (ECF No. 43).) To date, Plaintiff has not filed proof of service as to any

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defendants.

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II.

ANALYSIS
Plaintiff moves under Rule 60(b)(5) of the Federal Rules of Civil Procedure for relief from

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the court’s order (ECF No. 23) denying the motion to disqualify Defendants’ attorney. Plaintiff

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argues that by filing the motion to dismiss, Defendants made a general appearance in the case and

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that the court should now consider Plaintiff’s motion to disqualify Defendants’ attorney.

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Specifically, Plaintiff argues that the court’s order “as applied prospectively is no longer equitable,

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moot and/or justified.” (Mot. to Vacate (ECF No. 43) at 3.)

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Defendants respond that the federal courts have abolished the distinction between general

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and special appearances. They further argue that they have not been properly served with process

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and that every appearance they have made in this matter has been under protest because the court

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does not have personal jurisdiction over Defendants. Finally, Defendants argue that Rule 60(b)(5)

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deals with prospective application of a judgment and that the court’s order denying the motion to

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disqualify Defendants’ attorney is not an order that has prospective application. Defendants state

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that the proper course of action would have been for Plaintiff to re-file his motion to disqualify

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rather than seeking to vacate a properly entered order. Defendants request an opportunity to oppose

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the motion to disqualify on its merits if the court decides to grant Plaintiff’s motion to vacate.

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Plaintiff replies that Defendants have conceded personal jurisdiction, citing a University of

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Miami Law Review article from 1961 and a Fifth Circuit case from 1957. Although it is somewhat

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unclear, the court also understands Plaintiff to be arguing that he moved to disqualify Defendants’

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attorney before effectuating service based on Plaintiff’s perception that Defendants had waived

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service. Plaintiff further argues that Defendants’ failure to oppose the previous motion to

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disqualify constitutes a consent to the granting of the motion.

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Rule 60(b)(5) of the Federal Rules of Civil procedure provides in relevant part that “[o]n

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motion and just terms, the court may relieve a party or its legal representative from a final

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judgment, order, or proceeding . . .” if “the judgment has been satisfied, released or discharged; it is

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based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no

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longer equitable” or for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(5)-(6). Rule

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60(b) relief is only available from final judgments, orders, and proceedings. See United States v.
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Martin, 226 F.3d 1042, 1048 n. 8 (9th Cir. 2000) (stating that Rule 60(b) applies only to motions

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attaching “final, appealable orders”). “Virtually all pretrial orders are nonfinal, and thus, not

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appealable.” 19 James Wm. Moore et al., Moore’s Federal Practice § 201.14 (3d. ed. 2011).

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Nevertheless, the court has the inherent power to reconsider or amend interlocutory orders so long

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as the court has jurisdiction over the case. Martin, 226 F.3d at 1048-49. In this district, Local Rule

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59-1 prescribes the procedure for seeking reconsideration of an interlocutory order.

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Here, the order denying Plaintiff’s motion to disqualify as moot is not a final, appealable

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order. The court therefore finds that Rule 60(b)(5) is inapposite here. Although the court could

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construe Defendant’s motion to vacate as a motion for reconsideration, the court declines to do so

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at this time. Given that Plaintiff has not filed proof of service as to Defendants and that

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Defendants’ motion to dismiss on that issue is pending before the assigned district judge, it does

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not appear that the court has personal jurisdiction over Defendants. See Direct Mail Specialists,

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Inc. v. Eclat Computerized Tech., Inc., 840 F.2d 685, 688 (9th Cir. 1988) (stating that “[a] federal

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court does not have jurisdiction over a defendant unless the defendant has been served properly

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under Fed. R. Civ. P. 4.”). Until the service issue is resolved, the court declines to reopen

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Plaintiff’s motion to disqualify Defendants’ counsel or to order further briefing on the

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disqualification issue.

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III.

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CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff David Lee Phillips’s Motion to Vacate Order

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Denying Plaintiff’s Motion to Disqualify Defense Counsel (ECF No. 43) is DENIED without

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prejudice.

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DATED: March 3, 2017

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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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