The 24-7 Group of Companies, Inc. v. Roberts et al
Filing
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ORDER denying 40 Demand to Void Motion and Related Order Due to Fraud upon the Court. Signed by Magistrate Judge William G. Cobb on 9/10/14. (Copies have been distributed pursuant to the NEF - JC)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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THE 24-7 GROUP OF COMPANIES, INC., )
a Nevada corporation,
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Plaintiff,
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vs.
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TERRY ROBERTS, an individual;
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MELANIE ROBERTS, an individual; and )
WELLS FARGO BANK, N.A., etc.,
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Defendants.
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______________________________________)
3:13-cv-00211-MMD-WGC
ORDER DENYING
DEMAND TO VOID MOTION AND
RELATED ORDER DUE TO
FRAUD UPON THE COURT
(re: Doc. # 40)
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Before the court is the Demand to Void Motion and Related Order Due to Fraud Upon the Court
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filed by Plaintiff, The 24-7 Group of Companies, Inc. ("24-7"). (Doc. # 40.)1 This motion arises from
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a motion to withdraw as counsel of record filed by Plaintiff's former attorney Phillip M. Stone, Esq.
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(Doc. # 36.) The court will review the history of this motion, commencing with a predecessor motion
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to withdraw.
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On February 20, 2014, then counsel of record Del Hardy, Esq., and Stephanie Rice, Esq., made
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a motion to withdraw further representation of Plaintiff 24-7. (Doc. # 21.) In that motion, attorneys
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Hardy and Rice represented to the court that they had a "fundamental disagreement" with actions 24-7's
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chairman Rune Kraft insisted the lawfirm undertake. (Id. at 6, ¶ 3.) Counsel represented that the
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relationship between Plaintiff and the lawfirm "has deteriorated to the point where counsel can no longer
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represent Plaintiff effectively and adequately." (Id at 6, ¶ 6.) Counsel referenced Rule 1.16 of the Nevada
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Rules of Professional Conduct which states an attorney "shall withdraw from the representation of a
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client if * * * (4) A client insists upon taking actions that the lawyer considers repugnant or with which
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the lawyer has fundamental disagreement... ."
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Refers to court's docket number.
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The motion of the Hardy law group was granted (Doc. # 23) and Plaintiff 24-7 was directed to
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secure replacement counsel. Thereafter, Plaintiff 24-7 filed a "request to vacate" the court's decision. The
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court scheduled a hearing to address 24-7's request to vacate. (Doc. # 26.) The court commenced the
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hearing with a discussion of Ninth Circuit authority which requires a corporation to appear in federal
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court only through a licensed attorney. United States v. High Country Broad Co., 3 F.3d 1244, 1245 (9th
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Cir. 1993); In re America W. Airlines, 40 F.3d 1058, 1059 (9th Cir. 1944) (per curiam). The court also
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allowed participation by attorney Stephen Dokken who stated he was not representing the corporation
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but that he was only participating to assist Mr. Kraft because he (attorney Dokken) has been Mr. Kraft's
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personal attorney for many years.
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The court heard competing statements from Mr. Kraft and Mr. Hardy regarding the Hardy Law
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Group's submission to the court that there is a fundamental disagreement between the law firm and the
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corporation as how the case should be prosecuted. While the court recognized that Mr Kraft took
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exception with the assertion that there was a fundamental disagreement between 24-7 and the Hardy Law
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Group, the court expressed its opinion that counsel identified legitimate grounds for withdrawal and that
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the court "should not impose upon the lawfirm the representation of a client with whom it has such a
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disagreement. (Doc. # 30 at 2.)
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The 23-7 request to vacate was denied and the parties were advised of the authority to file
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objections to the magistrate judge's order within fourteen days. (Doc. # 30.) No objection was filed. The
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court ordered 24-7 to procure replacement counsel not later than 30 days thereafter. (Id., 30 at 3.) The
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court granted 24-7's request for an extension of time (Doc. # 32) and afforded it until May 9, 2014, to
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retain replacement counsel. (Doc. # 33.)
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On May 9, 2014, attorney Phillip M. Stone entered an appearance on behalf of 24-7. (Doc. # 35.)
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Thereafter Mr. Stone filed a motion for leave to withdraw as counsel of record, stating that "a situation
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has arisen between the 24-7 Group's representative, Rune Kraft, and Mr. Stone which has rendered
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continued representation of the 24-7 Group by Mr. Stone unreasonably difficult." Mr. Stone further
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advised the court that "the attorney-client relationship has deteriorated and Mr. Stone can no longer
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effectively and adequately represent the 24-7 Group in the above entitled action." (Doc. # 36 at 3.)
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Mr. Stone informed the court that, pursuant to the engagement agreement, he notified the 24-7 Group
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in writing that he had "no alternative but to withdraw from representing the 24-7 Group in this matter."
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Mr. Stone indicated he (attorney Stone) has not been informed whether new counsel had been retained
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by 24-7 as of the date of the motion to withdraw filed by attorney Stone. (Id.)
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On July 15, 2014, with no opposition having been filed, the court found good cause to grant the
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motion to withdraw of attorney Stone and entered an order to that effect. The court also directed 24-7
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to secure replacement counsel as a corporation may only appear in federal court through a licensed
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attorney. High Country Broad. Co. and In re America W. Airlines, supra. (Doc. # 37.)
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On August 20, 2014, the court received a "request to vacate" by 24-7. (Doc. # 38.) 24-7's
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chairman, Rune Kraft, stated that although he received a letter from attorney Stone advising the Stone
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motion to withdraw had been granted, neither the order or the underlying motion was ever received by
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the company. (Id, at 5.) The request to vacate did not address the substantive issue of whether attorney
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Stone should be allowed to withdraw, i.e., whether Mr. Kraft had "repeatedly taken actions with had
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rendered continued representation unreasonably difficult" or that as Mr. Stone represented in the motion,
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he "can no longer effectively and adequately represent The 24-7 Group in the above entitled action."
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(Doc. # 36 at 3, 5.)
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Addressing 24-7's request to vacate, the court noted that attorney Stone's motion contained a
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certificate of service which included Kraft and 24-7 as addressees. However, even if the motion had not
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been received, the court advised in its order denying the request to vacate, that it the court is not inclined
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to vacate the decision allowing Mr. Stone to withdraw. The clerk was nevertheless directed to mail a
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copy of the court's order (Doc. # 39), counsel's motion (Doc. # 36) and the court's order granting the
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motion to withdraw (Doc. # 37) to Kraft/24-7.
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Although the court's order allowing attorney Stone to withdraw directed 24-7 to procure
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replacement counsel within thirty days of the date of that order, the court advised it would conduct a
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show cause hearing on September 5, 2014, to consider whether a report and recommendation should be
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entered recommending dismissal of the action for failure of the corporation to obtain substitute counsel.
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(Doc. # 39 at 2.)
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Thereafter, Mr. Kraft on behalf of 24-7 filed a "Demand" to void the underlying motion to
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withdraw as purportedly representing "a product of fraud upon the court." (Doc. # 40 at 2.) Plaintiff 24-7
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again asserted it had not received the motion to withdraw. However, the 24-7 Demand (Doc. # 40), like
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the Request to Vacate (Doc. # 38), contained no substantive discussion of the grounds asserted by
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attorney Stone as to whether the attorney client relationship deteriorated where Mr. Stone could no
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longer represent the company.
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The court conducted the show cause hearing on September 5, 2014. Mr. Kraft appeared on behalf
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of the corporation at the show cause hearing and reiterated his demand that the court vacate its order
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allowing attorney Stone to withdraw.2 However, Mr. Kraft again failed to address any substantive
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response to Mr. Stone's representation that the representation has deteriorated and he could no longer
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effectively and adequately represent 24-7.
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As noted above, Rule 1.16 of the Nevada Rules of Professional Conduct state that a lawyer may
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withdraw from representing a client if a client insists upon taking action that the lawyer considers
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repugnant or with which the lawyer has fundamental disagreement. Rule 1.16(b)(4). The court advised
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Mr. Kraft at the hearing that he and 24-7 had at least one, if not two, opportunities to rebut the assertion
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that the Stone/24-7 attorney-client relationship had deteriorated. Instead, Kraft continued to argue that
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the purported failure to serve the motion to withdraw upon the company should void the action by the
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court. The court disagreed and opined that it would be inappropriate for the court to compel an attorney
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to continue representation of an apparently adverse client where the withdrawal would neither cause an
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undue delay in the proceedings or prejudice the client. The court denied Plaintiff 24-7's demand to void
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motion. (Doc. # 40.)
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The court extended the time until September 30, 2014, for 24-7 to secure legal representation to
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further represent its interests in this matter. The parties were advised of their right to file objections to
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the Magistrate Judge's Order in this respect.
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IT IS SO ORDERED.
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DATED: September 10, 2014.
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_____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE
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Although Mr. Kraft is not an attorney, the court allowed Mr. Kraft, who represents he is 24-7's "chairman," to
speak on behalf of the company.
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