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Reech v. Sullivan

United States District Court, S.D. Mississippi, Northern Division

April 5, 2018

CHRISTY REECH, PLAINTIFF
v.
GLEN SULLIVAN, SHELLEY SULLIVAN, WARD'S OF SEMINARY, INC., DEFENDANTS

          ORDER

          LINDA R. ANDERSON UNITED STATES MAGISTRATE JUDGE

         Before the Court are Defendants' Motion to Disqualify Counsel [3] and the Pro Hac Vice Application of Attorney William Most [5]. Having considered the parties' submissions, reviewed the relevant legal authorities, and heard oral argument from counsel, the Court finds as follows.

         FACTUAL AND PROCEDURAL BACKGROUND

         A civil complaint was filed on behalf of Plaintiff Christy Reech on January 17, 2018 [1]. Plaintiff is a Louisiana resident [1 at p. 3]. The complaint names three Defendants: Glen Sullivan, Shelley Sullivan, and Ward's of Seminary, Inc. [1]. The individual Defendants are alleged to reside in Mississippi, and the corporate Defendant is alleged to be in good standing in Mississippi [1 at p.3].

         The electronic signatures of two attorneys appear on the complaint [1 at p.14]. Both attorneys, Jacqueline K. Hammack and William Most, list business addresses in New Orleans, Louisiana [1 at p.14]. Attorney Hammack is admitted to practice law in Mississippi, but Attorney Most is not admitted to practice law in Mississippi [1 at p.14]. There is a notation under Attorney Most's electronic signature that reads, “pro hac vice to be filed” [1 at p.14].

         Two days after the complaint was filed, Attorney Most executed documents intended to be used in this litigation [3-1]. The first document is entitled “NOTICE OF A LAWSUIT AND REQUEST TO WAIVE SERVICE OF A SUMMONS” and includes Attorney Most's electronic signature and contact information [3-1]. As the name suggests, the notice explains to Defendants that a lawsuit has been filed and that Plaintiff requests that Defendants waive their right to service of process [3-1]. The notice specifically states that, “[i]f you return the signed waiver, I will file it with the court” [3-1]. The second document is entitled “WAIVER OF THE SERVICE OF SUMMONS” and includes a line designated for the “name of the plaintiff's attorney” [3-1]. Only Attorney Most's name appears on the line [3-1].

         Attorney Most e-mailed both documents to Defendants' counsel [3-1]. The email states, in pertinent part, that “my client instructed me to go ahead and get the case on file” [3-1]. The e-mail further states that “[y]ou can return the signed waiver forms to me via email” [3-1].

         Defendants' counsel did not respond to Attorney Most's e-mail or return the waivers. Instead, on January 22, 2018, Defendants' counsel entered a limited appearance in this case “for the purpose of contesting an appearance made by Attorney William Most” [2]. That same day, Defendants filed a motion requesting that Attorney Most be disqualified [3].

         Four days after Defendants filed their disqualification motion, Attorney Most applied to this Court for pro hac vice admission [5]. Defendants promptly objected to Attorney Most's application, and Plaintiff timely responded in opposition to Defendants' disqualification motion [6-8]. Before Defendants filed their reply, Attorney Hammack re-sent notice and waiver documents to Defendants' counsel, this time including only her name rather than Attorney Most's name [9-1]. Defendants filed their reply on February 2, 2018, and this Court conducted an in-person hearing on February 8, 2018 [9; 2/9/2018 Text Entry].

         DISCUSSION

         The general rule governing legal practice before this Court is found in Local Rule 83.1(d)(2), which provides that a nonresident attorney must either be a member of the Mississippi Bar who is admitted to practice before the Mississippi Supreme Court or be admitted pro hac vice. The corollary is Local Rule 83.1(d)(7)(E), which provides that pro hac vice “admission should be denied [if] the applicant ha[s], before the application, filed or appeared in the federal court without having secured approval under these rules.” These rules raise two questions pertinent to the instant dispute: (1) whether Attorney Most made an unauthorized appearance in this case and, if so, (2) whether the unauthorized appearance should result in disqualification.

         Although the Local Rules do not define the word “appearance, ” that word has a settled meaning under Mississippi law. Over 15 years ago, the Mississippi Supreme Court affirmed the denial of a pro hac vice request and issued the following warning to non-resident attorneys: “[A]ttorneys are hereby noticed and cautioned that a foreign attorney will be deemed to have made an appearance in a Mississippi lawsuit if the foreign attorney signs the pleadings or allows his or her name to be listed on the pleadings.” See In re Williamson, 838 So.2d 226, 235 (Miss. 2002).[1] The warning also has been codified through Mississippi Rule of Appellate Procedure 46(b)(1)(ii), which provides that “‘[a]ppearance' shall include the appending or allowing the appending of the foreign attorney's name on any pleading or other paper filed or served[.]”

         Plaintiff does not dispute that the inclusion of Attorney Most's electronic signature on the complaint constitutes an “appearance” under the just-recited authority. Instead, Plaintiff argues that an “appearance” means something different in Mississippi's federal courts than it does in Mississippi's state courts. The Fifth Circuit recently addressed this same issue in Isom v. Valley Forge Insurance Company, 2017 WL 6729968 (5th Cir. Dec. 29, 2017). There, the Fifth Circuit affirmed Judge Starrett's disqualification determination, which relied on the Mississippi Supreme Court's definition of “appearance” in the In re Williamson case. See Isom, 2017 WL 6729968 at *6. The Fifth Circuit supported its affirmance with an acknowledgement that this Court's Local Rules expressly incorporate the MISSISSIPPI RULES OF PROFESSIONAL CONDUCT. Id. Like the two non- resident attorneys in Isom whose names appeared on the complaint, Attorney Most's name and electronic signature constitute an “appearance” in this lawsuit. Compare [1 at p.14] with Isom, 2017 WL 6729968 at *6.

         Moreover, Attorney Most's participation in this litigation did not end when the complaint was filed. Attorney Most executed notices and requests for waiver of service of process, directed them to Defendants, and requested that they be returned to his attention [3-1]. The documents do not include the signature or contact information of Attorney Hammack [3-1]. Rather, they include only the signature and contact information of Attorney Most [3-1]. The documents specifically state that, “[i]f you return the signed waiver, I will file it with the court” [3-1]. Attorney Most made an ...


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