Access 4 All v. Commons at Sugarhouse, The, No. 2:2016cv01075 - Document 14 (D. Utah 2016)
Court Description: MEMORANDUM DECISION AND ORDER - denying 10 Motion for Admission Pro Hac Vice ; denying 11 Motion for Admission Pro Hac Vice. Accordingly, Lawrence Fuller, Allen Fuller, and Ms. Burningham are hereby ORDERED to show cause why each of them should not be sanctioned under Rule 11, sanctioned under the courts inherent authority, and/or referred to the courts disciplinary committee. Written responses must be filed within fourteen (14) days of the date of this order and must include any arguments that counsel intend to advance. Based on the written responses,the court may either issue a ruling or set a hearing. Failure to respond to this order will result in contempt sanctions and in referral to the disciplinary committee. Signed by Magistrate Judge Paul M. Warner on 11/15/2016. (las)
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Access 4 All v. Commons at Sugarhouse, The Doc. 14 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION ACCESS 4 ALL, INC., Plaintiff, MEMORANDUM DECISION AND ORDER v. Case No. 2:16-cv-01075-PMW THE COMMONS AT SUGARHOUSE, LLC, Magistrate Judge Paul M. Warner Defendant. Before the court are amended motions to admit pro hac vice Lawrence A. Fuller and Allen D. Fuller as plaintiff’s counsel in the above-captioned matter.1 The court previously denied the initial motions without prejudice.2 For the reasons discussed herein, the motions are hereby DENIED with prejudice and Lawrence Fuller, Allen Fuller, and Kay Burningham are ORDERED to show cause why each of them should not be sanctioned and/or referred to the District of Utah’s disciplinary committee. Both Lawrence Fuller and Allen Fuller have been admitted pro hac vice in this district five times since March 24, 2016.3 Kay Burningham, local counsel who moved for the Fullers’ 1 Docket nos. 10 and 11. 2 Docket nos. 8 and 9. 3 Docket nos. 10 and 11. Dockets.Justia.com admissions in this matter, also acted as the local counsel on the Fullers’ ten prior motions for admission. Admission pro hac vice is a privilege, not a right. “[T]he Constitution does not require that because a lawyer has been admitted to the bar of one State, he or she must be allowed to practice in another.” Leis v. Flynt, 439 U.S. 438, 443 (1979). Federal courts are authorized under 28 U.S.C. § 2071 and rule 83 of the Federal Rules of Civil Procedure to promulgate local rules of practice. See United States v. Hvass, 355 U.S. 570, 575 (1958). “[T]here is no doubt that the federal district court has a right to establish its own standards for admission to practice.” Mattox v. Disciplinary Panel of U.S. Dist. Court for Dist. of Colo., 758 F.2d 1362, 1364 (10th Cir. 1985). As approvingly noted by the Supreme Court, “in many District Courts the decision on whether to grant pro hac vice status to an out-of-state attorney is purely discretionary.” Frazier v. Heebe, 482 U.S. 641, 651 n.13 (1987). Pro hac vice admission to the District of Utah is discretionary. See DUCivR 83-1.1(d) (noting attorneys “may be admitted pro hac vice upon completion and acknowledgement” of courts requirements (emphasis added)). Pro hac vice means “[f]or this occasion or particular purpose,” and usually “refers to a lawyer who has not been admitted to practice in a particular jurisdiction but who is admitted there temporarily for the purpose of conducting a particular case.” Black’s Law Dictionary (10th ed. 2014); see also Eagle Ins. Co. v. Johnson, 982 F. Supp. 1456, 1459 (M.D. Ala. 1997) (citation omitted), aff’d, 162 F.3d 98 (11th Cir. 1998). The Supreme Court has described pro hac vice attorneys as “one-time or occasional practitioners.” Frazier, 482 U.S. at 647. Here, the applicants have exceeded the “occasional” practice contemplated by pro hac vice admission. Each applicant seeks his sixth admission in this district in less than an eight- 2 month period. This number and frequency of admissions cannot possibly be construed as “occasional” practice before this court. See, e.g., Mateo v. Empire Gas Co., 841 F. Supp. 2d 574, 581 (D.P.R. 2012) (“Six active cases cannot seriously be considered ‘occasional.’”). Most local practitioners are not involved in that many cases before this court during a comparable time period. For example, the court could only find seven cases in this district involving Ms. Burningham since June 2010, and six of those cases involve the Fullers. Although not necessary to the court’s decision, it is relevant that these admissions would also constitute twelve pro hac vice admissions of members of the same firm. See generally Utah SUP.CT. R. PROF’L PRACTICE 14-806 (requiring applicant to list “other cases pending or closed within the prior five years in any state or federal court of Utah in which the applicant or a member of the applicant’s firm appears pro hac vice” (emphasis added)). For the foregoing reasons, the motions for admission are DENIED. In addition, in considering the amended motions, the court compared them to the initial motions. The initial applications, signed under penalty of perjury, state that that the respective applicants had no prior pro hac vice admissions in the District of Utah.4 However, as noted above, each attorney had been admitted pro hac vice in this district five times when he signed.5 Despite direct involvement in the Fullers’ collective ten prior admissions, Ms. Burningham filed the initial motions with attestations of no prior admissions. Counsel did not seek to withdraw or correct the initial moving papers or to bring the issue to the court’s attention. 4 Docket nos. 5 at 2 and 6 at 2. 5 Access 4 All v. Sears Roebuck & Co., Case No. 2:16-cv-00237; Access 4 All v. Plaza 7-21, Case No. 2:16-cv-00238; Access 4 All v. Trolley Square Ventures, Case No. 2:16-cv-00239; Access 4 All v. Ivy Place at 9th East & Van Winkle, Case No. 2:16-cv-00474; and Access 4 All v. Smith's Food King Properties, Case No. 2:16-cv-00475. 3 At best, including false information in an application personally signed by an attorney— an officer of the court charged with knowledge of the gravity of perjury—is gross negligence. Lawrence Fuller was previously disciplined,6 in part, for filing inaccurate pleadings and having inadequate office procedures.7 In fact, that disciplinary action arose after another court’s inquiry into “what appeared to be, at best, extremely sloppy legal work, and at worst, deliberately fraudulent filings” by Lawrence Fuller. Sanctions Order, Access for America v. Speedway Superamerica, Case No. 2:01-cv-14300-DMM (S.D. Fla. April 28, 2003), docket no. 71 (copy attached hereto as Exhibit A). This disciplinary history makes the current issue even more troubling and reinforces the court’s denial of pro hac vice admission. Similarly, Ms. Burningham filed two short motions that contained statements that she knew or should have known firsthand were not true. At best, Ms. Burningham was grossly negligent and filed documents she had not read. Rule 11 of the Federal Rules of Civil Procedure states that: By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney . . . certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances[ . . . ] the factual contentions have evidentiary support . . . . 6 See docket no. 10 at 13 (order from Florida Supreme Court of Florida adopting referee’s report and admonishing Lawrence Fuller). 7 See docket no. 10 at 5-12 (referee’s report noting false assertions in 13 different actions that client was a quadriplegic and noting testimony from special master that certain “problems were caused by [Lawrence Fuller’s] law firm’s office procedures which were inadequate” for caseload). 4 Fed. R. Civ. P. 11(b). “On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b).” Fed. R. Civ. P. 11(c)(3). Accordingly, Lawrence Fuller, Allen Fuller, and Ms. Burningham are hereby ORDERED to show cause why each of them should not be sanctioned under Rule 11, sanctioned under the court’s inherent authority, and/or referred to the court’s disciplinary committee. Written responses must be filed within fourteen (14) days of the date of this order and must include any arguments that counsel intend to advance. Based on the written responses, the court may either issue a ruling or set a hearing. Failure to respond to this order will result in contempt sanctions and in referral to the disciplinary committee. IT IS SO ORDERED. DATED this 15th day of November, 2016. BY THE COURT: PAUL M. WARNER United States Magistrate Judge 5 EXHIBIT A 6 Case 2:01-cv-14300-DMM Document 71 Entered on FLSD Docket 04/28/2003 Page 1 of 19 Case 2:01-cv-14300-DMM Document 71 Entered on FLSD Docket 04/28/2003 Page 2 of 19 Case 2:01-cv-14300-DMM Document 71 Entered on FLSD Docket 04/28/2003 Page 3 of 19 Case 2:01-cv-14300-DMM Document 71 Entered on FLSD Docket 04/28/2003 Page 4 of 19 Case 2:01-cv-14300-DMM Document 71 Entered on FLSD Docket 04/28/2003 Page 5 of 19 Case 2:01-cv-14300-DMM Document 71 Entered on FLSD Docket 04/28/2003 Page 6 of 19 Case 2:01-cv-14300-DMM Document 71 Entered on FLSD Docket 04/28/2003 Page 7 of 19 Case 2:01-cv-14300-DMM Document 71 Entered on FLSD Docket 04/28/2003 Page 8 of 19 Case 2:01-cv-14300-DMM Document 71 Entered on FLSD Docket 04/28/2003 Page 9 of 19 Case 2:01-cv-14300-DMM Document 71 Entered on FLSD Docket 04/28/2003 Page 10 of 19 Case 2:01-cv-14300-DMM Document 71 Entered on FLSD Docket 04/28/2003 Page 11 of 19 Case 2:01-cv-14300-DMM Document 71 Entered on FLSD Docket 04/28/2003 Page 12 of 19 Case 2:01-cv-14300-DMM Document 71 Entered on FLSD Docket 04/28/2003 Page 13 of 19 Case 2:01-cv-14300-DMM Document 71 Entered on FLSD Docket 04/28/2003 Page 14 of 19 Case 2:01-cv-14300-DMM Document 71 Entered on FLSD Docket 04/28/2003 Page 15 of 19 Case 2:01-cv-14300-DMM Document 71 Entered on FLSD Docket 04/28/2003 Page 16 of 19 Case 2:01-cv-14300-DMM Document 71 Entered on FLSD Docket 04/28/2003 Page 17 of 19 Case 2:01-cv-14300-DMM Document 71 Entered on FLSD Docket 04/28/2003 Page 18 of 19 Case 2:01-cv-14300-DMM Document 71 Entered on FLSD Docket 04/28/2003 Page 19 of 19
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