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Bailey v. Metropolitan Council

United States District Court, D. Minnesota

September 12, 2019

Jeffrey L. Bailey and Marlon E. Carter, Plaintiffs,
v.
Metropolitan Council, First Transit, Inc., Tim Ogren, Patricia Vold, Don Johnson, Troy D. Gustafson, Teamsters Local 120, and Dean Vinge, Defendants,

          Jeffrey L. Bailey, and Marlon E. Carter (pro se Plaintiffs)

          Brian Hentosz, Littler Mendelson, and Holly M. Robbins, Littler Mendelson, (for Defendants Metropolitan Council, First Transit, Inc., Ogren, Vold, Johnson and Vinge); and Katrina E. Joseph, (for Defendants Gustafson and Teamsters Local 120).

          ORDER

          Tony N. Leung United States Magistrate Judge

         This matter is before the Court on Plaintiffs' Motion to Deny Defendants' Motion for Admission Pro Hac Vice (ECF No. 71) and Plaintiffs' 2nd Motion to Amend Amended Complaint. (ECF No. 89). For the reasons set forth below, the Court will deny Plaintiffs' motion to deny admission pro hac vice. The Court will also set a briefing schedule on the motion to amend and related motions to dismiss.

         I. BACKGROUND

         Plaintiffs filed suit on April 12, 2019. They amended their complaint on June 11, 2019. (ECF No. 5). Approximately one month later, all Defendants but Johnson, who had not yet been served, moved to dismiss the amended complaint. (ECF Nos. 11 & 17). Plaintiffs subsequently served Johnson, who moved to dismiss the complaint on August 22, 2019. (ECF No. 79). Plaintiffs then moved to amend their complaint. (ECF No. 89).

         Shortly before the first two motions-to-dismiss were filed, Attorney Holly M. Robbins moved for admission pro hac vice of Attorney Brian M. Hentosz, who is based in Pennsylvania. (ECF No. 10). Robbins indicated that she was a resident of the State of Minnesota and that she agreed to participate in the preparation and presentation of this case and accept service of all papers as required by this Court's local rules. Hentosz submitted an affidavit in support of the motion indicating that he was admitted to the United States District Court for the Western District of Pennsylvania and consenting to electronic service. (ECF No. 10, p. 2). The Court granted the motion on July 10, 2019. (ECF No. 16).

         Plaintiffs now move to deny admission pro hac vice to Hentosz. (ECF No. 71). They allege that he has misled and harassed them by acting as though he was licensed in Minnesota even though he had not yet been admitted pro hac vice. They further note that Minnesota communication laws are different than Pennsylvania laws, which they argue “will cause arguments and conflicts when communicating when referring back to digital notes.” (ECF No. 71, p. 2). They also argue that allowing an out-of-state attorney to represent certain Defendants in this case adds unnecessary expense to them and that Defendants have other local counsel who can represent them.

         II. ANALYSIS

         An attorney not working for the United States or one of its officers or agencies, who resides outside of Minnesota, and who is not admitted to practice before the Minnesota Supreme Court may petition to appear before the Court pro hac vice. D. Minn. LR. 83.5(d). The attorney seeking admission pro hac vice must be a member in good standing with another federal district court and associate with an active member of this Court's bar who has agreed to participate in the presentation and preparation of the case, agreed to accept service of all papers, and is a Minnesota resident, unless otherwise ordered. D. Minn. LR. 83.5(d)(2). In addition, a member of this Court's bar must move for admission of the attorney seeking pro hac vice admission. D. Minn. LR. 83.5(d)(3). The motion must be accompanied by payment of the admission fee, be made on the form supplied by the Clerk of Court, and include affidavits by both the attorney seeking pro hac vice admission and the attorney with the nonresident attorney will be associating. D. Minn. LR. 83.5(d)(3).

         In this case, Robbins filed a motion for admission pro hac vice for Hentosz on the appropriate form, with the appropriate filing fee, and accompanied by the appropriate affidavits. (ECF No. 10). Hentosz, being a member in good standing of another federal district court and having associated with an active member of the Court's bar who has agreed to all the requirements of Local Rule 83.5(d)(2), is eligible for pro hac vice admission. This Court recognizing as much, granted the motion.

         The Court will not reconsider this decision. Plaintiffs have not filed a letter requesting permission to file a motion for reconsideration. D. Minn. LR. 7.1(j). But even if they had, there is no merit to their request. Local counsel has agreed to accept service of all papers in this case. Thus, Plaintiffs are incurring no additional expense by the admission pro hac vice of Hentosz; they need only serve Hollins. Plaintiffs have also identified no legal authority demonstrating that Hentosz has engaged in any conduct that would constitute grounds to deny him admission pro hac vice. The fact that Hentosz contacted them before being admitted pro hac vice is irrelevant. Minnesota Rule of Professional Conduct 5.5, which applies to practice in this Court, see D. Minn. LR. 83.6, permits an attorney to provide legal services on a temporary basis if the attorney reasonably expects to be authorized to practice in this district. Nothing in the record suggests that Hentosz exceeded the scope of practice authorized by the Rule 5.5.

         Finally, there is no reason for the Court to deny admission pro hac vice because of differences between Minnesota and Pennsylvania communication laws. At first glance, this argument appears non-sensical. But, based on other filings in this case (ECF No. 57-1, p. 3), it appears that Plaintiffs have a habit of recording conversations they have with defense counsel (as well as with an administrative law judge in a related matter). Minnesota is a “one-party” consent state, which means a person may record a communication with another person without his or her consent, so long as the recording party is participating in the conversation. Minn. Stat. § 626A.02, subd. 2(d). Pennsylvania, however, is a “two-party” consent state, meaning that all parties to the communication must consent to it being recorded. 18 Pa. Cons. Stat. §§ 5703, 5704(4). A person who violates the Pennsylvania law is guilty of a third-degree felony. 18 Pa. Cons. Stat. § 5703. Thus, Plaintiffs appear to be suggesting that the Court deny admission pro hac vice to an attorney because they would not be able to record that attorney without either obtaining his consent or without committing a felony in Pennsylvania.

         Plaintiffs' argument is patently absurd. It is highly unusual and inappropriate for a litigant to record a conversation with another party. In fact, quite frankly, the Court can think of no reason for a litigant to do so. And setting aside the question of whether Plaintiffs should be permitted to record calls with opposing counsel without their consent, the Court will absolutely not deny Defendants the right to their chosen counsel simply because Plaintiffs would face the risk of criminal prosecution if they recorded conversations with him or her. Plaintiffs are expected to treat opposing ...


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