United States District Court, N.D. California
ORDER DENYING MOTION TO DISQUALIFY AND MOTION FOR
SANCTIONS Re: Dkt. No. 12
MARIA-ELENA JAMES United States Magistrate Judge
before the Court is Plaintiff Thomas Von Thury's Motion
to Disqualify Counsel and for Sanctions. See Mot.,
Dkt. No. 12. Defendants Cecile Von Thury Nagy Wahl, Doris Von
Thury, and Klaus Wahl (collectively,
“Defendants”) filed an Opposition (Dkt. No. 14),
and Plaintiff filed a reply (Dkt. No. 16).
Court finds the Motion suitable for disposition without oral
argument and accordingly VACATES the hearing scheduled for
August 3, 2017. See Civ. L.R. 7-1(b); Fed.R.Civ.P.
78(b). For the reasons stated below, the Court
DENIES Plaintiff's Motion in its
Motion to Disqualify
Jerome Synold represents Defendants in this action.
See Opp'n. Plaintiff asks the Court to
disqualify Synold, arguing Synold sent Plaintiff a misleading
email that did not disclose he represents Defendants, thereby
violating California Rule of Professional Conduct 1-400.
See Mot.; see also Von Thury Decl.
¶¶ 4-11, Dkt. No. 12-1. Plaintiff does not attach
the misleading email in question “due to the way Mr.
Synold's website was configured.” Von Thury Decl.
¶ 12. Plaintiff does not explain the basis for his
belief that the configuration of Synold's website
affected Plaintiff's ability to retain emails sent to
Plaintiff's own email address. He declares that, upon
being informed by “a lawyer in Germany” that
Synold represents Defendants, he “realized that Mr.
Synold had been deceptive and that [Plaintiff] could very
easily have disclosed confidences to him before learning the
truth.” Id. ¶ 10. It is unclear why
Plaintiff would have disclosed confidences to Synold, given
his representation he deleted Synold's email as spam.
Id. ¶ 8. In opposition, Defendants attach what
Synold declares are true and correct copies of the only
correspondence Synold sent Plaintiff before answering the
Complaint. See Opp'n at 4-5;
id., Ex. A (cover email), Ex. B (letter); Synold
Decl. ¶¶ 2-4, Dkt. No. 14. The letter explains
Plaintiff's attempts to serve Defendants were defective,
and that the letter “shall serve as an attempt to meet
and confer with you regarding your attempted service of
process. . . . [and] as an attempt to advise you of the
defects associated with your intended service of process
thereby allowing you to rectify the defects should you choose
to do so.” Id., Ex. B. While Plaintiff is
correct the letter does not explicitly state Synold
represents Defendants, the Court finds that this is the only
reasonable interpretation of the letter. The Court
specifically disagrees with Plaintiff's argument that
“it was perfectly reasonable from the content of Mr.
Synold's email and the surrounding circumstances that it
be understood as a solicitation for offering legal services
which is why Plaintiff deleted it.” Mot. at 5. This
argument is especially poorly taken given that Plaintiff has
been “a practicing lawyer for over 40 years in multiple
jurisdictions and courts” (id.) and the letter
repeatedly mentions it is an attempt to meet and confer
regarding the deficiencies of the Complaint and service
has not shown Synold's letter contained any untrue
statement; contained any matter which tends to confuse,
deceive, or mislead the public; omitted to state any fact
necessary to make the statements made, in light of the
circumstances under which they are made, not misleading to
the public; or failed to clearly indicate “expressly,
or by context” that it is a communication or
solicitation. See Mot. at 5 (quoting Rule
1-400(1)-(4)). Synold's inclusion of a standard polite
closing inviting Plaintiff to contact him to discuss the
contents of the letter does not “clearly”
establish the letter is a solicitation. See Reply at
2. Plaintiff accordingly has not established any violation of
Rule 1-400. The Court therefore DENIES the request to
disqualify Synold as Defendants' attorney in this action.
Plaintiff's Motion for Sanctions
asks the Court to award him sanctions because Defendants
declined to accept informal service of the Complaint and
Plaintiff was forced to incur the expenses of serving
Defendants pursuant to the requirements of the Hague
Convention. Plaintiff may be able to recover the costs of
international service if he prevails in this action; he may
not recover these costs as a sanction for Defendants'
insistence that Plaintiff follow the Hague Convention
requirements for international service. See Fed. R.
Civ. P. 54(d); Civ. L.R. 54-3 (“Fees for service of
process by someone other than the marshal acting pursuant to
Fed.R.Civ.P. 4(c), are allowable to the extent reasonably
required and actually incurred.”). Moreover, Plaintiff
recognizes that the mandatory cost shifting provision
contained in Rule 4(d)(2) is inapplicable in this instance
because Defendants are not located in the United States. Mot.
at 7. The Court DENIES Plaintiff's request for sanctions.
If he prevails in the action, he may seek to recover these
costs at the conclusion of the suit.
Defendants' Request for Sanctions
include in their Opposition a request for sanctions based on
Plaintiff's violation of Federal Rule of Civil Procedure
11. This is not procedurally proper. See Civ. L.R.
7-8. The Court denies without prejudice Defendants'
Court ORDERS Plaintiff to review Federal Rules of Civil
Procedure 1 and 11, and ORDERS all parties to review the
Local Rules of this Court.