United States District Court, E.D. California
ORDER TO SHOW CAUSE WHY SUBSTITUTION OF ATTORNEY
SHOULD NOT BE DENIED, SANCTIONS SHOULD NOT BE IMPOSED AGAINST
PHILIP A. DOWNEY FOR UNAUTHORIZED PRACTICE OF LAW, AND/OR
PHILIP A. DOWNEY'S PRO HAC VICE STATUS SHOULD NOT BE
REVOKED TWENTY-ONE (21) DAY DEADLINE
BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE
August 16, 2019, Plaintiff Jerrod Finder
(“Plaintiff”) filed a Substitution of Attorney
seeking to substitute Philip A. Downey as his counsel of
record in place of Morris Nazarian. (Doc. No. 98.)
of attorney are subject to the approval of the Court. L.R.
182(g). Local Rule 180 governs admission of attorneys to
practice before this Court and provides, in relevant part,
“[a]dmission to and continuing membership in the Bar of
this Court are limited to attorneys who are active members in
good standing of the State Bar of California.” L.R.
180(a). Attorneys who are not active members in good standing
of the State Bar of California may, upon application and in
the discretion of the Court, be permitted to appear and
participate in a particular case pro hac vice. Id.
Substitution of Attorney provides no information regarding
whether Mr. Downey is an active member in good standing of
the State Bar of California. (Doc. No. 98.) However, a review
of the docket indicates that Mr. Downey is not a member of
the State Bar of California. Furthermore, although Mr. Downey
was admitted pro hac vice on behalf of the Plaintiff Jonathan
Talavera in related case Talavera v. Leprino Foods
Company, et al., Case No. 1:15-cv-00105-AWI-BAM
(“Talavera”) before it was consolidated
with this matter, the docket indicates that Mr. Downey has
not filed an application for admission to practice pro hac
vice in this case. See L.R. 180(b)(2) (“An
attorney . . . may, upon application and in the discretion of
the Court, be permitted to appear and participate in
a particular case.”) (emphasis added);
Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-497
(1933) (“[C]onsolidation is permitted as a matter of
convenience and economy in administration, but does not merge
the suits into a single cause, or change the rights of the
parties, or make those who are parties in one suit parties in
another.”); Hall v. Hall, 138 S.Ct. 118 (2018)
(consolidation does not result in the merger of constituent
cases); cf. Schnabel v. Lui, 302 F.3d 1023, 1036
(9th Cir. 2002) (Johnson v. Manhattan Ry. Co.,
supra, 289 U.S. 479 does not apply for purposes of
finality of judgment on appeal but remains good law with
respect to consolidation for other purposes); see also In
re U.S., 791 F.3d 945, 956 (9th Cir. 2015) (District
court's interpretation of its local rules entitled to
deference (citing Bias v. Moynihan, 508 F.3d 1212,
1223 (9th Cir.2007)); Curtis v. BCI Coca-Cola Enterprises
Bottling Companies, supra, 2014 WL 4417741, at
*4 (“[D]istrict courts have broad discretion over the
application of its own local rules”).
Rule 180(b)(2)(ii) requires an applicant for admission pro
hac vice to designate a member of the Bar of this Court with
whom the Court and opposing counsel may readily communicate
regarding the applicant's conduct of the action and upon
whom service shall be made. L.R. 180(b)(2)(ii). Mr.
Downey's application for admission pro hac vice in
Talavera solely identifies Cory Lee as such a
designee, yet Mr. Lee has withdrawn from this matter.
(See Doc. No. 97; Talavera, Doc. Nos. 6,
7.) See L.R. 180(b)(2)(ii).
pursuant to Local Rule 180(b)(2),
“Unless authorized by the Constitution of the United
States or an Act of Congress, an attorney is not eligible to
practice [pro hac vice] if any one or more of the following
apply: (i) the attorney resides in California, (ii) the
attorney is regularly employed in California, or (iii) the
attorney is regularly engaged in professional activities in
L.R. 180(b)(2). According to the Court's records, Mr.
Downey has made pro hac vice applications to the Court in the
following matters, all of which have been granted: (1)
Salcido, et al. v. Cargill Meat Solutions Corp., et
al., Case No. 1:07-cv-01347-LJO-GSA; (2) Franco, et
al. v. Ruiz Food Products, Inc., Case No.
1:10-cv-02354-SKO; Barbosa v. Cargill meat Solutions
Corp., Case No. 1:11-cv-00275; (3) Aguilar v. Wawona
Frozen Foods, et al., Case No. 1:15-cv-00093-DAD-EPG;
(4) Talavera v. Leprino Foods Company, et al., Case
No. 1:15-cv-00105-AWI-BAM; (5) Brewer v. Saputo Dairy
Foods USA, LLC, et al., Case No. 1:16-cv-01373-DAD-EPG;
(6) Vasquez, et al. v. Leprino Foods Company, et
al., Case No. 1:17-cv-00796-AWI-BAM; and (7) Pena,
et al. v. Taylor Farms Pacific, Inc., et al., Case No.
2:13-cv-01282. Frequent applications for admission pro hac
vice may indicate that an attorney is regularly engaged in
professional activities in California in violation of Local
Rule 180(b)(2). See, e.g., Guguni v. Chertoff, 2008
WL 2080788 (N.D. Cal. 2008); Mendoza v. Golden West Sav.
Ass'n Services Co., 2009 WL 2050486 (C.D. Cal.
2009); Ang v. Bimbo Bakeries USA, Inc., 2015 WL
1474866 (N.D. Cal. 2015).
to Local Rule 180(d),
“The Court may order any person who practices before it
in violation of [Local Rule 180] to pay an appropriate
penalty that the Clerk shall credit to the Court's
Nonappropriated Fund. Payment of such sum shall be an
additional condition of admission or reinstatement to the Bar
of this Court or to practice in this Court.”
L.R. 180(d). Local Rule 110 further provides that counsel or
a party's failure to comply with the Local Rules or with
any order of the Court may be grounds for imposition of any
and all sanctions authorized by statute or Rule or within the
inherent power of the Court. Id. at 110; see
also Id. at 180(d); see also Lasar v. Ford Motor
Co., 299 F.3d 1101 (9th Cir. 2005) (Court may revoke pro
hac vice status following notice and an opportunity to
respond); Curtis v. BCI Coca-Cola Enterprises Bottling
Companies, 2014 WL 4417741, at *4 (E.D. Cal. Sept. 5,
2014) (Court has discretion to revoke pro hac vice status).
it appears that substitution of Mr. Downey as counsel for
Plaintiff is improper because he is not admitted to practice
law before this Court. Specifically, is appears that Mr.
Downey is not an active member in good standing of the State
Bar of California and has not been admitted pro hac vice in
this case. Moreover, Mr. Downey may have engaged in the
unauthorized practice of law before this Court by appearing
on behalf of Plaintiff Talavera on numerous occasions without
having filed an application for admission pro hac vice in
this case. (See Doc. No 52, 64, 71, 75, 79) Even if
Mr. Downey's admission pro hac vice in Talavera
could be construed as extending to this case in light of the
consolidation, it appears that Mr. Downey's pro hac vice
status would be subject to revocation because Mr. Lee has
withdrawn as counsel of record and therefore no member of the
Bar of this Court identified as a designee as required under
Local Rule 180. Mr. Downey may further be considered to have
regularly engaged in professional activities in California
and therefore be ineligible for admission pro hac
Philip A. Downey is HEREBY ORDERED to SHOW CAUSE why the
Substitution of Attorney filed on August 16, 2019 (Doc. No.
98), should not be denied, sanctions should not issue against
him for unauthorized practice of law before the Court, and/or
why his admission pro hac vice should not be revoked on the
basis that he has not identified a member of the Bar of this
Court as a designee as required under Local Rule 180 and is
regularly engaged in professional activities in California.
Mr. Downey shall file a written response to this order to
show cause within twenty-one (21) days of
service of this order.
to respond to this order to show cause will result in the
denial of Plaintiff's Substitution of Attorney,
imposition of sanctions, including but not limited to