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Finder v. Leprino Foods Co.

United States District Court, E.D. California

December 18, 2019

JERROD FINDER, et al., Plaintiffs,
v.
LEPRINO FOODS COMPANY, et al., Defendants. ISAIAS VASQUEZ, et al., Plaintiffs,
v.
LEPRINO FOODS COMPANY, et al., Defendants.

          ORDER DISCHARGING ORDER TO SHOW CAUSE TO PHILIP A. DOWNEY RE: PRO HAC VICE STATUS (Doc. No. 99) (Doc. No. 122)

          BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE.

         I. BACKGROUND

         On December 17, 2013, Jerrod Finder v. Leprino Foods Company, et al., No. 1:13-cv-02059-AWI-BAM (the “Finder Action”) was removed to this Court from the Superior Court for the County of Kings. (Finder Action, Doc. No. 1.) On January 21, 2015, Jonathan Talavera filed a complaint in Jonathan Talavera v. Leprino Foods Company, et al., No. 1:15-cv-00105-AWI-BAM (the “Talavera Action”). (Talavera Action, Doc. No. 1.) Philip A. Downey, counsel for Jonathan Talavera, was admitted pro hac vice in the Talavera Action on February 19, 2015. (Talavera Action, Doc. No. 7.) On November 21, 2016, the Court issued an order consolidating the Finder Action and the Talavera Action. (Finder Action, Doc. No. 63; Talavera Action, Doc. No. 86.)

         On June 12, 2017, Isaias Vasquez, et al. v. Leprino Foods Company, et al., No. 1:17-cv- 00796-AWI-BAM (the “Vasquez Action”) was removed to this Court from the Superior Court of California for the County of Kings. (Vasquez Action, Doc. No. 1.) Philip A. Downey, counsel for Plaintiffs Isaias Vasquez and Linda Hefke, was admitted pro hac vice in the Vasquez Action on December 20, 2018. (Vasquez Action, Doc. No. 33.)

         On August 16, 2019, Plaintiff Jerrod Finder submitted a proposed Substitution of Attorney in the Finder Action purporting to substitute Philip A. Downey as his counsel of record in place of Morris Nazarian. (Finder Action, Doc. No. 98.) On August 30, 2019, the Court issued an order to show cause in the Finder Action why the Substitution of Attorney should not be denied, sanctions should not be imposed against Mr. Downey for unauthorized practice of law, and/or Mr. Downey's pro hac vice status should not be revoked. (Finder Action, Doc. No. 99.) Among other things, the Court's order to show cause noted that Local Rule 180(b)(2) provides that an attorney is not eligible to practice pro hac vice if he or she is regularly employed in California or is regularly engaged in professional activities in California. According to the Court's records, Mr. Downey had been admitted pro hac vice in eight separate matters in the Eastern District of California since 2007 and therefore may be considered to have regularly engaged in professional activities in California and be ineligible for admission pro hac vice. On September 5, 2019, the Court issued an order to show cause in the Vasquez Action likewise requiring Mr. Downey to Show cause why his admission pro hac vice should not be revoked on the basis that he is regularly engaged in professional activities in California. (Vasquez Action, Doc. No. 122.) Mr. Downey was required to file a written response to the Court's orders to show cause in the Finder Action and the Vasquez Action within fourteen (14) days of service. (Finder Action, Doc. No. 98; Vasquez Action, Doc. No. 122.)

         On September 19, 2019, Mr. Downey filed a written response to the Court's orders to show cause in the Finder Action and the Vasquez Action. (Finder Action, Doc. No. 103; Vasquez Action, Doc. No. 128.) The same day, Defendants Leprino Foods Company and Leprino Foods Dairy Products Company filed a response to the Court's orders to show cause which, in relevant part, identified additional cases in California in which Mr. Downey had been admitted pro hac vice. (Finder Action, Doc. No. 104; Vasquez Action, Doc. No. 129.) At Mr. Downey's request, he was granted leave to file a written reply to Defendants' response. (Finder Action, Doc. Nos. 105, 109; Vasquez Action, Doc. Nos. 130, 137.) Mr. Downey was directed to focus his reply on the issues of whether he is regularly employed or regularly engaged in professional activities in California and the Court further discharged the order to show cause in the Finder Action on all other issues. (Finder Action, Doc. No. 109; Vasquez Action, Doc. No. 137.) Mr. Downey filed a reply to Defendants' response to the order to show cause on September 27, 2019, and an amended reply on October 3, 2019. (Finder Action, Doc. Nos. 112, 113; Vasquez Action, Doc. Nos. 140, 141.) In light of the parties' responses to the orders to show cause, the Court set a Show Cause Hearing in order to address whether Mr. Downey is regularly employed or regularly engaged in professional activities in California. (Finder Action, Doc. No. 115; Vasquez Action, Doc. No. 142.)

         On December 13, 2019, after a request for a continuance, the Court held a Show Cause Hearing. (Finder Action, Doc. No. 125; Vasquez Action, Doc. No. 158.) Counsel Philip A. Downey appeared telephonically on his own behalf. Counsel Kitty K. Szeto appeared telephonically on behalf of Plaintiffs Jerrod Finder and Jonathan Talavera in the Finder Action and Plaintiffs Isaias Vasquez and Linda Hefke in the Vasquez Action. Counsel Morris Nazarian appeared telephonically on behalf of Plaintiff Jerrod Finder in the Finder Action. Counsel Lisa Pooley appeared in person on behalf of Defendants Leprino Foods Company and Leprino Foods Dairy Products Company in the Finder Action and the Vasquez Action.

         The Court, having considered the parties' written briefs, the arguments of counsel at the Show Cause Hearing, and the record in this case, hereby discharges the Orders to Show Cause entered as Docket No. 99 in the Finder Action and Docket No. 122 in the Vasquez Action.

         II. DISCUSSION

         A. Legal Standards

         Local Rule 180 governs the admission of attorneys to practice pro hac vice in this Court. 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 California.”

L.R. 180(b)(2). Additionally, Local Rule 180(e) incorporates and adopts the standards of professional conduct of the State of California as standards of professional conduct in this Court. Every member of the Bar of this Court and any attorney permitted to practice pro hac vice is required to “become familiar with and comply with the standards of professional conduct required of members of the State Bar of California and contained in the State Bar Act, the Rules of Professional Conduct of the State Bar of California, and court decisions applicable thereto[.]” Id.at 180(e).

         The Court may order any person who practices before it in violation of Local Rule 180 to pay an appropriate penalty to the Court's Nonappropriated Fund as 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). It is axiomatic that the Court has authority to enforce its local rules. See 28 U.S.C. ยง 2071. A district court's compliance with local ...


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