Access 4 All v. Commons at Sugarhouse, The

Filing 31

MEMORANDUM DECISION AND ORDER sustaining objection to 14 Order; granting 10 Motion for Admission Pro Hac Vice of Lawrence A. Fuller for Access 4 All; granting 11 Motion for Admission Pro Hac Vice of Allen D. Fuller for A ccess 4 All; denying 30 Motion to Stay. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov. Signed by Judge David Nuffer on 1/5/17 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
ACCESS 4 ALL, INC.,
a Florida Non-Profit Corporation,
Plaintiff,
v.
THE COMMONS AT SUGARHOUSE, LLC,
a Utah Limited Liability Company,

MEMORANDUM DECISION AND
ORDER SUSTAINING OBJECTION TO
MAGISTRATE JUDGE’S DECISION AND
ADMITTING LAWRENCE A. FULLER
AND ALLEN D. FULLER PRO HAC
VICE; AND DENYING [30] MOTION TO
STAY
Case No. 2:16-cv-01075-DN

Defendant.
District Judge David Nuffer

This case was originally assigned to Magistrate Judge Paul M. Warner, pending consent
of the parties to the exercise of full civil jurisdiction under 28 U.S.C. § 636(c). Plaintiff’s local
counsel, Kay Burningham, filed motions to admit pro hac vice Lawrence A. Fuller and Allen D.
Fuller as counsel in this case. 1 The pro hac vice motion for Allen Fuller was denied without
prejudice because “Counsel failed to sign the motion and to include all portions of the
application required under the local rules.” 2 The pro hac vice motion for Lawrence Fuller was
denied without prejudice because “Counsel failed to include all portions of the application
required and failed to attach listed exhibits, including without limitation, discussion regarding
applicant's being the subject of prior disciplinary action.” 3

1

Motions for Pro Hac Vice Admissions and Consent of Local Counsel, docket nos. 5 and 6, filed October 20, 2016.

2

Docket Text Order, docket no. 8, filed October 21, 2016.

3

Docket Text Order, docket no. 9, filed October 21, 2016.

Ms. Burningham refiled motions to admit pro hac vice Lawrence A. Fuller and Allen D.
Fuller as plaintiff’s counsel. 4 Unlike the first motions, these refiled motions appear to
substantially comply with DUCiv R 83-l.l(d) for admission pro hac vice. 5 However, the refiled
motions were denied because “the applicants ha[d] exceeded the ‘occasional’ practice
contemplated by pro hac vice admission.” 6
Plaintiff’s counsel, Ms. Burningham, Lawrence Fuller, and Allen Fuller, filed an
objection to the magistrate judge’s decision. 7 Because the parties had not yet consented to the
magistrate judge’s exercise of full civil jurisdiction, the case was subsequently reassigned to the
district court to resolve the objection. 8 On review of a magistrate judge’s nondispositive order,
“[t]he district judge in the case must consider timely objections and modify or set aside any part
of the order that is clearly erroneous or is contrary to law.” 9
Counsel object to the magistrate judge’s ruling that their pro hac vice applications
exceeded the occasional practice of pro hac vice admissions. While acknowledging that pro hac
vice admissions may be discretionary, 10 counsel assert that “Utah has no cap on the number of
4

Motion for Pro Hac Vice Admission and Consent of Local Counsel for Lawrence A Fuller, docket no. 10, filed
October 26, 2016; Motion for Pro Hac Vice Admission and Consent of Local Counsel for Allen D. Fuller, docket
no. 11, filed October 26, 2016.
5

While claiming that “applications for admissions pro hac vice were subsequently corrected,” Objection at 7, Allen
D. Fuller’s latest application still erroneously states “None” in response to prior pro hac vice admissions in the
District of Utah. However, he indicates “Please See Attached” and the attachment is a list of his appearances in five
other cases in this district. See Motion and Application for Pro Hac Vice at 2-3, docket no. 11.
6

Memorandum Decision and Order (Order) at 2, docket no. 14, filed November 15, 2016.

7

Objection to Magistrate Judge [sic] Decision to District Court (Objection), docket no. 21, filed November 29,
2016.
8

See General Order 11-001 (“Cases so assigned shall be deemed to be assigned to the Chief Judge and referred to
the magistrate judge for the exercise of all authority under 28 U.S.C. 636 (b) as provided in DUCivR 72-2 (a)(6)
during the period of time when the parties enter the case and decide whether to consent to the exercise of full civil
jurisdiction under 28 U.S.C. § 636 (c).”).

9

Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A) (“A judge of the court may reconsider any pretrial matter
under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or
contrary to law.”).

10

Objection at 4-5.

2

times an attorney may be admitted pro hac vice.” 11 Counsel correctly notes that neither the
United States District Court for the District of Utah nor the Utah State Bar has a specific rule
limiting the number of times an attorney may be admitted pro hac vice. 12
Plaintiff’s counsel cites a decision from the District of New Jersey 13 concerning the same
issue regarding limitations on the number of pro hac vice admissions. In that case, the district
judge found that the magistrate judge’s order denying “pro hac vice admission on the basis that
[the attorney had] appeared too many times was erroneous” because there was “no authority
under [the] rules for the application of a numerical limitation on pro hac vice admission.” 14 The
same reasoning applies in Utah.
As the magistrate judge’s order clearly describes, the first pro hac vice motions filed by
counsel were clearly deficient, inaccurate, and misleading. 15 Consequently, those motions were
properly denied without prejudice. 16 But the refiled motions substantially comply with the rules
for pro hac vice admission. Because those rules do not limit the number of times an attorney may
be admitted pro hac vice, the magistrate judge’s order denying counsels’ admission based on too
many pro hac vice appearances was erroneous.

11

Id. at 2.

12

Id.

13

Whiteside v. Empire Plaza, LLC, Civil Action No. 14-3062 (SRC)(CLW), 2014 WL 5437074 (D.N.J. Oct. 24,
2014).

14

Id. at *4.

15

Order at 3-4.

16

Docket nos. 5 and 6.

3

ORDER
IT IS HEREBY ORDERED that the objection 17 is SUSTAINED and the portion of the
order 18 denying pro hac vice admission is REVERSED.
IT IS FURTHER ORDERED that Lawrence A. Fuller and Allen D. Fuller are admitted
pro hac vice in this case.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Stay of Proceedings 19 is
DENIED.
Signed January 5, 2017.
BY THE COURT

________________________________________
District Judge David Nuffer

17

Docket no. 21.

18

Docket no. 14.

19

Docket no. 30, filed December 30, 2016.

4