DUKE UNIVERSITY v. UNIVERSAL PRODUCTS INC.
Filing
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MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 7/24/2014. ORDERED that the parties Joint Motion to Re-Set Initial Pretrial Conference (Docket Entry 20 ) is GRANTED IN PART AND DENIED IN PART in that the IPC is continued to August 4, 2014, at 4:00 p.m., in Courtroom 1A of the L. Richardson Preyer United States Courthouse, Greensboro, North Carolina, but the attendance at the IPC of Attorney Bishop is not excused. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DUKE UNIVERSITY,
Plaintiff,
v.
UNIVERSAL PRODUCTS INC.,
Defendant.
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1:13CV701
MEMORANDUM OPINION AND ORDER
This case comes before the Court on the parties’ Joint Motion
to Re-Set Initial Pretrial Conference (Docket Entry 20).
Docket Entry dated July 23, 2014.)
(See
For the reasons that follow,
the Court will grant in part and deny in part the instant Joint
Motion in that the Court will reschedule the Initial Pretrial
Conference (“IPC”) as requested, but will not excuse Attorney J.
Daniel Bishop from attending the IPC.
BACKGROUND
Attorney Bishop appeared on behalf of Defendant by filing a
Motion to Stay (with supporting brief) and an Answer on January 13,
2014.
(Docket Entries 9, 10, 11.)
Subsequently, Attorney Bishop
filed a notice of special appearance for Defendant by Attorney
Frank A. Mazzeo of Colmar, Pennsylvania.
(Docket Entry 16.)
Court thereafter set this case for an IPC.
The
(Docket Entry 19.)
According to the instant Joint Motion, “the parties (through their
lead counsel) timely held their initial discovery conference . . .
and [are] generally in agreement as to discovery issues, with the
exception of the number of interrogatories and possibly electronic
discovery.”
(Docket Entry 20 at 1.)
DISCUSSION
The instant Joint Motion seeks postponement of the IPC for one
week and asks that the Court set the time for the IPC no earlier
than 11:00 a.m.
(Id.)
The parties have shown good cause for those
reasonable scheduling requests (see id. at 1-2 (setting forth
counsels’
personal
and
civic
commitments,
as
well
as
travel
considerations, supporting requested accommodations)) and the Court
thus will grant them, see M.D.N.C. LR7.3(j) (providing that motions
seeking “to continue a pretrial conference . . . must state good
cause”); Christmas v. Nationwide Mut. Ins. Co., ___ F. Supp. 2d
___, ___, 2014 WL 3110021, at *10 (E.D.N.C. July 7, 2014) (“To the
extent possible, the court will attempt to accommodate the parties’
schedules.”);
Brown-Pfifer
v.
St.
Vincent
Health,
Inc.,
No.
1:06CV236-SEB-JMS, 2007 WL 2757264, at *5 (S.D. Ind. Sept. 20,
2007) (unpublished) (“This court, like most others, willingly
attempts to accommodate the schedules of litigants and counsel as
necessary
to
avoid
significant
inconvenience
and
hardship
. . . .”); Alexander S. by and through Bowers v. Boyd, 929 F. Supp.
925, 936 (D.S.C. 1995) (“[T]he court has attempted, whenever
possible, to accommodate the schedules of counsel.”).
The instant Joint Motion “also requests . . . local counsel
[for Defendant] be[] excused from attending the [IPC].”
Entry 20 at 1-2.)
(Docket
As grounds for that request, the instant Joint
Motion states: “Lead counsel [for Defendant] is most knowledgeable
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about this case, especially the interrogatories issue, and it would
be significantly more expensive for [D]efendant to have both its
counsel attend the hearing.”
(Id. at 2.)
That statement does not
provide a proper basis to relieve Attorney Bishop of his obligation
to attend the IPC.
“Litigants in civil and criminal actions . . . before this
Court, except parties appearing pro se, must be represented by at
least one attorney who is a member of the bar of this Court.”
M.D.N.C. LR83.1(c)(1). “Attorneys who are members in good standing
of the bar of the highest court of any state or the District of
Columbia may practice in this Court for a particular case in
association with a member of the bar of this Court.”
LR83.1(d)(1).
M.D.N.C.
“A member of the bar of this Court who accepts
employment in association with a specially appearing attorney is
responsible to this Court for the conduct of the litigation or
proceeding and must sign all pleadings and papers, except for
certificates of service.
Such member must be present during
pretrial conferences, potentially dispositive proceedings, and
trial.”
M.D.N.C. LR83.1(d)(2) (emphasis added); see also M.D.N.C.
LR83.1(c)(2) (“All pleadings and papers presented to the clerk for
filing, except by attorneys representing governmental agencies or
parties appearing pro se, shall be signed by a member of the bar of
this Court.”); Fed. R. Civ. P. 11(b) (“By presenting to the court
a pleading, written motion, or other paper – whether by signing,
filing, submitting, or later advocating it – an attorney . . .
certifies to the court that to the best of the person’s knowledge,
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information, and belief, formed after an inquiry reasonable under
the circumstances:
purpose
.
.
(1) it is not being presented for any improper
.;
(2)
the
claims,
defenses,
and
other
legal
contentions are warranted by existing law or by a nonfrivolous
argument for extending, modifying, or reversing existing law or for
establishing new law; (3) the factual contentions have evidentiary
support
or,
if
specifically
so
identified,
will
likely
have
evidentiary support after a reasonable opportunity for further
investigation
or
discovery;
and
(4)
the
denials
of
factual
contentions are warranted on the evidence or, if specifically so
identified,
are
reasonably
based
on
belief
or
a
lack
of
information.”).
“Rules requiring foreign counsel to associate with local
counsel . . . have been consistently upheld . . . [and represent]
a reasonable means by which the district court may regulate the
practitioners who appear before it.”
United States v. Menner, 374
F. App’x 446, 447-48 (4th Cir. 2010).
“The purpose of [such]
rule[s] is self-evident, namely to allow out-of-state counsel to
appear only with the support and supervision of a local attorney.”
Brown v. Phillip Morris Inc., 291 F. Supp. 2d 3, 6 (D. Mass. 2003).
In that regard, “the requirement to associate local counsel serves
a useful function.
Local counsel can be assumed to be familiar
with local procedures and practices and make that knowledge and
expertise available to out of district counsel, thus promoting
efficiency and lowering costs.”
In re Groth Bros. Oldsmobile,
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Inc., BAP No. NC-12-1482-DJuPa, 2013 WL 5496514, at *11 (B.A.P. 9th
Cir. Oct. 3, 2013) (unpublished).
Moreover, by explicitly declaring that members of the bar of
this Court who appear along with specially-appearing counsel remain
“responsible to this Court for the conduct of the litigation” and
by requiring said members to sign all court filings and to attend
most court proceedings, M.D.N.C. LR83.1(d)(2), the Local Rules of
this Court “place[] an important responsibility upon the attorney
who sponsors a pro hac vice admission to this Court. Such attorney
is not merely a ‘local counsel,’ but shares full responsibility for
the representation of the client.”
Lenoir v. Pyles, 320 F. Supp.
2d 365, 367 (D. Md. 2004). “[Such] rule[s] impose[] a significant,
ongoing responsibility on [so-called] local counsel and should not
be taken lightly.”
Brown, 291 F. Supp. 2d at 6.
This Court’s approach in this area reflects the long-time,
national norm, as another court explained nearly a quarter of a
century ago:
Although the term ‘local counsel’ at one time may have
meant less responsibility on the part of attorneys so
designated, it is clear to the court, and should be to
every lawyer who litigates in this country, that in the
last ten years developments in the law have invalidated
this prior meaning. The trend is, properly, away from
the
view
that
some
counsel
have
only
limited
responsibility and represent a client in court in a
limited capacity, or that the local counsel is somewhat
less the attorney for the client than is lead counsel.
In modern day practice, all counsel signing pleadings and
appearing in a case are fully accountable to the court
and their clients for the presentation of the case. The
Federal Rules of Civil Procedure . . . do not recognize
any lawyers as less than full advocates for their
clients.
The law makes no distinction, as to the
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liability of lawyers signing pleadings, between those who
are self-designated ‘lead’ or ‘local’ counsel. Federal
Rule of Civil Procedure 11 places stringent obligations
on all counsel signing pleadings, however designated.
Gould, Inc. v. Mitusi Mining & Smelting Co., 738 F. Supp. 1121,
1125 (N.D. Ohio 1990).
Given the foregoing considerations, the Court cannot relieve
Attorney Bishop of his duty to attend the IPC based on the two
grounds offered, i.e.: (1) that he lacks the knowledge of the case
and
the
disputed
case-management
issues
that
Attorney
Mazzeo
possesses; and (2) that Defendant will have to pay for Attorney
Bishop to appear at the IPC.
As to the first of those matters, the
above-quoted authority makes clear that Attorney Bishop bears a
professional
obligation
to
remain
fully
abreast
of
material
developments in this case and that he cannot serve his intended
function(s) if he does not participate actively in this case.1
Regarding the second concern identified by Defendant, the Court
observes
that
Defendant
chose
to
1
proceed
in
this
case
with
For example, how will Attorney Bishop make the abovereferenced Rule 11 representations that will accompany his required
signature on the IPC-related filing that Defendant has to make, see
M.D.N.C. LR16.1(b) (“The parties shall jointly prepare a Rule 26(f)
Report (LR 16.2) if they are in agreement concerning a discovery
plan for the case.
If they do not agree, each shall file a
separate Rule 26(f) Report (LR 16.3), setting forth its position on
disputed matters.”), if (as stated in the instant Joint Motion) he
did not participate in the discovery plan conference and if (as
implied by the instant Joint Motion) he lacks sufficient knowledge
of the case and disputed issues to provide meaningful assistance at
the IPC. See generally Coburn Optical Indus., Inc. v. Cilco, Inc.,
610 F. Supp. 656, 660 n.7 (M.D.N.C. 1985) (“Rule 11 makes it
advisable for attorneys acting as local counsel to consider the
extent to which they can perform the role of a passive conduit
consistent with the responsibilities imposed by Rule 11.”).
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specially-appearing counsel with full notice (via this Court’s
Local Rules) that Attorney Bishop would have to attend pretrial
conferences; the expenses arising from that requirement thus do not
unfairly burden Defendant.
CONCLUSION
The
parties
have
shown
good
cause
for
their
requested
rescheduling of the IPC, but have not offered a valid basis to
relieve Attorney Bishop of his duty to appear at the IPC.
IT IS THEREFORE ORDERED that the parties’ Joint Motion to ReSet Initial Pretrial Conference (Docket Entry 20) is GRANTED IN
PART AND DENIED IN PART in that the IPC is continued to August 4,
2014, at 4:00 p.m., in Courtroom 1A of the L. Richardson Preyer
United States Courthouse, Greensboro, North Carolina, but the
attendance at the IPC of Attorney Bishop is not excused.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
July 24, 2014
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