Katz et al

Filing 143

ORDER denying 104 Motion for Reconsideration (Motion for Admission Pro Hac Vice). So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Elena Katz
and Arnold Grodman
v.

Civil No. 10-cv-410-JL

Brian McVeigh, et al.
SUMMARY ORDER
Francis J. McDonough, a member of the bar of this court, has
moved for the admission pro hac vice of Louis M. Piccone, an
attorney licensed to practice in Pennsylvania, to represent the
plaintiffs, Elena Katz and Arnold Grodman, in this federal civil
rights action.

See L.R. 83.2(b).

While this court routinely

grants motions for admission pro hac vice, this one is unusual in
that (1) Piccone had previously been admitted to appear pro hac
vice in this action, but was later allowed to withdraw after his
license to practice in Pennsylvania was suspended, and (2) now
that Piccone has moved for re-admission, following the
reinstatement of his Pennsylvania license, nearly all of the
defendants have objected, alleging his “past misconduct, serious
misunderstanding of appropriate practices, inappropriate behavior
and a repeated pattern of litigation conduct designed to hinder
litigation and waste judicial and attorney resources.”
Specifically, the defendants point out that:
• Piccone was initially denied admission to the bar of
the United States Patent and Trademark Office due to a
lack of candor in his application, though he was later
admitted when the USPTO’s commissioner reversed that

decision by granting an internal appeal, see Piccone v.
Moatz, 136 F. Supp. 2d 525, 526-27 (E.D. Va. 2001)
(dismissing Piccone’s suit for damages arising out of
USPTO’s delay in acting on the appeal), aff’d, 25 Fed.
Appx. 950 (Fed. Cir. 2001);
• Piccone was fined for contempt by a federal district
court in New York for failing to file submissions and
appear at conferences as ordered, Nolan v. Primagency,
Inc., No. 07-134, 2008 WL 650387, at *2-*3 (S.D.N.Y.
Mar. 3, 2008); the court later dismissed the action
with prejudice as a sanction for Piccone’s failure to
comply with any of the filing requirements set forth in
the contempt order, Nolan v. Primagency, Inc., No. 07134, 2008 WL 1758644, at *5 (S.D.N.Y. Apr. 15, 2008);
• another federal district judge, in the District of
Massachusetts, referred Piccone to that state’s Board
of Bar Overseers for his “unorthodox efforts” to
represent a party pro hac vice there, Babeu v. Linker,
No. 09-30045 (D. Mass. Apr. 24, 2009);
• a federal magistrate judge in the District of
Massachusetts observed that Piccone was “playing fast
and loose with [that] court’s rules” by “aiding [a
party’s] case without admission in [that]
jurisdiction,” Hohn v. Burke, No. 09-30143 (D. Mass.
Aug. 28, 2009), slip op. at 3;
• the same magistrate judge subsequently denied Piccone
pro hac vice admission in a different case, finding
that he had been engaged in the unauthorized practice
of law in Massachusetts, that his conduct in that court
had been “frequently inappropriate and unprofessional,”
and that he had “engaged in a pattern of behavior which
not only purposefully skirted [that court’s] authority
but, as well, wasted judicial resources and potentially
harmed litigants,” Pease v. Burns, 679 F. Supp. 2d 161,
165 (D. Mass. 2010);
• another judge of this court dismissed a case
involving the same plaintiffs and some of the same
defendants as this one after no proof of timely service
or motion for Piccone’s pro hac vice admission had been
filed, despite “ample time” to do so, Katz v. McVeigh,
No. 10-178 (D.N.H. Sept. 29, 2010) (Barbadoro, J.);

2

• another federal district court, in Illinois, ordered
that it would accept no further filings from Piccone in
a case after he had filed a complaint on behalf of the
plaintiff “pending admission pro hac vice” but then
ignored the court’s repeated requests to comply with
its requirements for admission and electronic filing,
Hankins v. Burton, No. 11-408 (C.D. Ill. Aug. 29,
2011); and
• the Rockingham County Superior Court, in this state,
removed Piccone from his role as counsel to Grodman in
a criminal case there, finding that Piccone “does not
have the capacity to understand [that] Court’s clear
pretrial orders or he has elected to violate them
. . . . [I]t is clear that he cannot provide Mr.
Grodman with a competent defense,” New Hampshire v.
Grodman, Nos. 09-2511, 10-469 (N.H. Super. Ct. Aug. 25,
2011), slip op. at 4, though the court later reinstated
Piccone on Grodman’s pro se motion for reconsideration,
New Hampshire v. Grodman, Nos. 09-2511, 10-469 (N.H.
Super. Ct. Oct. 24, 2011), slip. op. 2.
“Any attorney who is a member in good standing of the bar of
any court of the United States or of the highest court of any
state may appear and practice before this court in that action at
the court’s discretion.”

L.R. 83.2(b).1

Thus, in this court, as

in many other federal district courts, “‘the decision on whether

1

During the off-the-record portion of an earlier conference
in this case, Piccone suggested that, because he had been
previously admitted pro hac vice in this action--before any of
the defendants had been served, and also before Local Rule
83.2(b) was amended to require a pro hac vice application to
include “a statement disclosing and explaining any prior denials
or revocations of pro hac vice status in any court”--he was not
required to seek pro hac vice admission again following his
withdrawal and, for that reason, had simply filed a notice of
appearance in this action once his Pennsylvania license had been
restored. The court disagreed and, for that reason, struck
Piccone’s notice of appearance and ordered him to seek pro hac
vice admission again if he wished to act as counsel. Order of
Oct. 28, 2011. Piccone has done so.
3

to grant pro hac vice status to an out-of-state attorney is
purely discretionary.’”

Roma Constr. Co. v. aRusso, 96 F.3d 566,

576-77 (1st Cir. 1996) (quoting Frazier v. Heebe, 482 U.S. 641,
651 n.13 (1987)).

In exercising this discretion, a court may

“consider the effect of the attorney’s past actions (especially
past ethical violations) on the administration of justice within
the court,” even if they are not “of the frequency or nature
whereby the attorney could face disbarment proceedings.”
Panzardi-Alvarez v. United States, 879 F.2d 975, 980 (1st Cir.
1989).

Such actions may include those demonstrating “a serious

lack of understanding regarding appropriate practice,” as well as
“behavior resulting in reprimands and wasted judicial time.”
Kampitch v. Lach, 405 F. Supp. 2d 210, 215-16 (D.R.I. 2005)
(quotation marks and ellipse omitted).
Piccone’s prior conduct, both in this proceeding and the
others cited by the defendants, readily lends itself to that
characterization.

In a number of those other proceedings,

Piccone simply ignored the court’s orders directing him to make
filings or take some other action--in some cases, repeatedly.
Many of these failures were completely unexplained (at least
based on anything discernable from the orders or dockets in those
cases) and all of them required the court in question to expend
resources unnecessarily.

Moreover, Piccone has engaged in

similar conduct in this proceeding, to similar effect:
4

• on September 20, 2010, this court ordered that a
motion for Piccone’s admission pro hac vice be filed
within 30 days. Order of Sept. 20, 2010. After more
than 40 days had passed and nothing had been filed,
however, this court, sua sponte, continued the
deadline. Order of Nov. 2, 2010;
• though this action was commenced on September 17,
2010, nothing had been filed to indicate that any
defendant had been served--nor had any summons been
requested for that purpose--as of December 22, 2010.
Thus, the court sua sponte notified plaintiffs that the
case would be dismissed on January 18, 2011--120 days
after filing, see Fed. R. Civ. P. 4(m)--if they did not
file proof of service by that date. Order of Dec. 22,
2010.
• on March 3, 2011, this court notified the plaintiffs
that their motion to amend their complaint did not
comply with the Local Rules because it lacked a
certificate of service, see L.R. 5.1(d), and ordered
them to file one. Order of Mar. 3, 2011. Nearly 20
days later, plaintiffs had yet to do so, causing the
court to withdraw the motion sua sponte. Order of Mar.
22, 2011.
• after the plaintiffs filed a new motion to amend,
this court entered a procedural order granting it and
imposing a schedule for briefing on motions to dismiss
“in light of the fact that the amended complaint names
a number of additional defendants” who had yet to be
served. Order of Apr. 14, 2011. In response, some of
the defendants filed an “emergency motion to clarify”
that order, and the court ordered the plaintiffs to
file their objection, if any, by April 27, 2011. Order
of Apr. 22, 2011. When that day passed without any
such objection, the court granted the motion as
unopposed. Order of Apr. 29, 2011. However, the
plaintiffs had filed an objection to the motion around
11:30 p.m. on April 28, 2011--untimely, and without any
explanation. This necessitated yet another order on
the emergency motion. Order of May 3, 2011.
• the court subsequently scheduled an evidentiary
hearing, for Monday, August 22, 2011, on the
plaintiffs’ request for appointment as “next friends”
of their incapacitated adult daughter so they could
5

include claims on her behalf in this action. Order of
Aug. 2, 2011. The order specifically directed both
Katz and Grodman to appear at the hearing. Id. Around
6 p.m. on Friday, August 19, 2011, however, plaintiffs
filed a motion to excuse Katz from appearing--timing
which the court deemed “inappropriate under the
circumstances” in denying the motion for that, and
other, reasons. Order of Aug. 22, 2011.
Based on these deficiencies, as well as his like deficiencies in
the other cases described supra, the court finds that Piccone
“has engaged in a pattern of behavior that has resulted in the
wasting of judicial resources” and, as such, makes his admission
pro hac vice inappropriate.

Kampitch, 405 F. Supp. 2d at 217;

see also Erbacci, Cerone, & Moriarty v. United States, 923 F.
Supp. 482, 485-86 (S.D.N.Y. 1996) (denying pro hac vice admission
to counsel whose actions provided no “reasonable assurance that
such attorney is familiar with” the court’s rules and practices).
This conclusion draws further support from Piccone’s
persistent failure to explain or justify his demonstrated
inability to comply with court orders and deadlines.

Piccone did

not provide any contemporaneous explanation for any of the missed
or untimely filings in this case, and does not provide one now.
In fact, though the motion to admit Piccone pro hac vice is
accompanied by a lengthy memorandum, it is devoted almost
entirely to a collateral attack on Judge Neiman’s finding in the
Pease case that Piccone had been engaged in the unauthorized
practice of law in Massachusetts (a finding which was never

6

appealed).

The motion argues that, while Piccone was never

admitted to the Massachusetts bar, all of the conduct which Judge
Neiman characterized as the unauthorized practice of law in that
jurisdiction--not only in connection with the Pease case, but
also in connection with the Babeu and Hohn cases, supra--was in
fact authorized as an out-of-state attorney’s provision of legal
services “on a temporary basis” as contemplated by Rule 5.5(c) of
the Massachusetts Rules of Professional Conduct.

But Judge

Neiman specifically ruled to the contrary in denying Piccone pro
hac vice admission in Pease, 679 F. Supp. 2d at 167-68, and,
while this court has little reason to doubt that conclusion, it
is not essential to this court’s finding that Piccone is
unsuitable for pro hac vice admission in this case.

Again, a

court can deny pro hac vice admission to an attorney based on his
prior conduct even if it would not warrant “disbarment
proceedings.”

Panzardi-Alvarez, 879 F.2d at 980.

Indeed, even if the findings adverse to Piccone in all of
the proceedings in Massachusetts are ignored, the record still
shows, at a minimum, that (1) he was held in contempt by a
federal district court in New York for failing to make filings
and appearances as ordered, and his client’s case was dismissed
with prejudice when Piccone failed to purge his contempt as
ordered, (2) he failed to arrange for service of process or the
filing of a pro hac vice motion on behalf of the plaintiffs here
7

in their case before Judge Barbadoro, which was then dismissed,
(3) he likewise failed to respond to orders to make a proper
appearance in a case before a federal district court in Illinois,
(4) the Rockingham County Superior Court found that Piccone
either lacked “the capacity to understand [that] Court’s clear
pretrial orders or he ha[d] elected to violate them,” and
temporarily disqualified him from defending Grodman in a criminal
case there, and (5) most importantly, he has failed to comply
with a number of orders directing him to make filings in this
case.

Again, the motion to admit Piccone pro hac vice does not

acknowledge--let alone provide any explanation for--any of these
problems (with one exception, and this court finds that
explanation wanting).2

2

A footnote in the motion for Piccone’s pro hac vice
admission states that the “issues arising” in the case in New
York “occurred while he was literally unable to attend that
litigation,” apparently because he was jailed or under house
arrest in Massachusetts on “facially bogus charges” of
interference with custody, abuse and neglect, and contempt of
court (all of which were ultimately dismissed). The footnote
states that Piccone “explained these circumstances to the [New
York] Court both before [its] decision and afterwards to no
avail.” In fact, the New York court specifically noted that,
while it was “sympathetic to [Piccone’s] personal issues,” they
did “not alleviate [his] duties to the Court and his client,”
particularly because Piccone “made no showing that he was unable
to contact the court during the time that he was preoccupied with
personal matters,” and “[a] simple letter to the court explaining
his plight could have resulted in” relief from the court-imposed
deadlines. Nolan, 2008 WL 1758644, at *5.
8

The motion for Piccone’s pro hac vice admission also argues
that “[t]his court has an obligation to the community to admit
attorneys like [him] who will agree to represent clients who have
unpopular causes,” quoting Judge Friendly’s observation that “in
instances where the federal claim or defense is unpopular, advice
and assistance by an out-of-state lawyer may be the only means
available for vindication.”

Spanos v. Skouras Theatres Corp.,

364 F.2d 161, 170 (2d Cir. 1966) (en banc).

But that observation

is inapt here, where the plaintiffs have secured New Hampshire
counsel, McDonough, to appear on their behalf in this case.
Furthermore, by McDonough’s own account, the plaintiffs had
previously hired “a number of previous attorneys” to represent
them in this matter but then “dismissed” them, apparently of the
plaintiffs’ own accord.

So, despite the motion’s suggestion to

the contrary, Piccone is hardly the only lawyer who has been
willing to take on the plaintiffs’ case.

And even if he were, no

degree of willingness to take on unpopular litigation can
substitute for the basic willingness, and ability, to comply with
court rules and orders which is essential to admission pro hac
vice.3

The motion to admit Piccone pro hac vice4 is DENIED.

3

The motion to admit Piccone pro hac vice simply assumes
that litigation against the New Hampshire Department of Children,
Youth, and Families or its employees is “unpopular” based on the
motion’s account (which is itself unverified and internally
inconsistent in some respects) of Piccone’s difficulties in
finding Massachusetts-based counsel to sponsor his pro hac vice
9

SO ORDERED.

____________________________
Joseph N. Laplante
United States District Judge
Dated:
cc:

April 20, 2012

Francis J. McDonough, Jr., Esq.
Louis A. Piccone, Esq.
Rebecca L. Woodard, Esq.
Nancy J. Smith, Esq.
Brian J.S. Cullen, Esq.
Adam B. Pignatelli, Esq.
Michael A. Pignatelli, Esq.
Charles P. Bauer, Esq.
Corey M. Belobrow, Esq.
W. Daniel Deane, Esq.
Raquel D. Ruano, Esq.
Raquel J. Webster, Esq.
Lisa M. Lee, Esq.

admissions on behalf of plaintiffs suing similar agencies in that
jurisdiction. Again, though, the plaintiffs here have
experienced no such difficulty in finding counsel to represent
them in this case.
4

Document no. 104.
10