United States District Court, D. Minnesota
Jeffrey L. Bailey and Marlon E. Carter, Plaintiffs,
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)
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
N. Leung United States Magistrate Judge
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.
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).
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).
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
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).
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
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.
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.
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 ...