Free Reply Memorandum - District Court of California - California

Case 3:08-cv-01896-PJH

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Neil Gieleghem CSBN 107389 Gieleghem Law Office 1875 Century Park East, Suite 700 Los Angeles, CA 90067 Telephone: (310) 284-3252 Telecopier: (310) 284-3253 [email protected] Attorneys for Plaintiff Nicholas H. Parker

UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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NICHOLAS H. PARKER, an individual,

) ) Plaintiff, ) ) vs. ) ) SCOTT MICHAEL MOORE, an individual; ) MOORE INTERNATIONAL LAW OFFICES, ) A PROFESSIONAL CORPORATION, a ) California corporation; MOORE ) INTERNATIONAL LAW OFFICES, A ) PROFESSIONAL CORPORATION, a business ) entity, form unknown; DOES 1 through 20, ) inclusive, ) ) Defendants. ) )

CASE NO. 3:08-CV-01896-PJH Hon. Phyllis J. Hamilton PLAINTIFF'S REPLY TO "RESPONSE OF SCOTT MICHAEL MOORE TO PLAINTIFF'S OPPOSITION TO PRO HAC VICE STATUS"; DECLARATION OF NEIL GIELEGHEM Hearing Date: N/A Time: N/A Courtroom: Courtroom A, 15th Floor [Nb. Referred to Hon. Joseph C. Spero pursuant to May 13, 2008 Order of Reference by Hon. Phyllis J. Hamilton]

I.

INTRODUCTION Mr. Moore's Response to Plaintiff's Objection to his pro hac vice admission is either (1)

unintentionally misdirected, or (2) intentionally misleading. Either way, the Response does not rebut Plaintiff's showing that, under this Court's Civil Local Rules, Mr. Moore is not eligible for pro hac vice admission because he "regularly engaged in the practice of law in the State of California" between 2001 and at least the end of February, 2007, in the guise of "Moore International Law Offices."

REPLY IN SUPPORT OF PLAINTIFF'S OBJECTION TO PRO HAC VICE ADMISSION OF SCOTT M. MOORE, CASE NO. 3:08-CV-01896-PJH

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II.

LEGAL ANALYSIS A. Plaintiff Did Not Receive Timely Notice Of Mr. Moore's Ex Parte Application For Pro Hac Vice Admission The ad hominem arguments1 initially offered by Mr. Moore do not rebut Plaintiff's

assertion that his counsel did not receive notice of Mr. Moore's Ex Parte Application until after this Court had ruled on the same. Contrary to Mr. Moore's argument, Plaintiff's receipt of Mr. Moore's initial removal papers ­ which stated only that Mr. Moore's pro hac vice Application was "pending" ­ is not a substitute for proper service of the Application papers themselves. This is particularly true given that, according to this Court's files (via the PACER system), Mr. Moore did not file his pro hac vice Application until April 14, 2008, four days after he allegedly mail served his removal papers on Plaintiff.2 Further, immediately on receiving Defendants' removal papers by mail on April 15, 2008, Plaintiff faxed Mr. Moore a letter that stated, among other things: Pro Hac Vice Application Your pleadings indicate that you have applied for pro hac vice admission to the Northern District. No such application has been served on [Plaintiff]. If you have filed such an application, Plaintiff demands that the same be served on this office immediately, so that Plaintiff can contest any such admission.

1

See, e.g., Response, p. 4, lns. 9-10 (Plaintiff's counsel "shows a failure to understand routine federal practice"); p. 3, lns. 9-10 (Plaintiff "deliberately plead[ed] false facts in his Complaint"). Plaintiff does not believe it necessary or productive to respond to such comments; or to Mr. Moore's repeated threats to seek Rule 11 sanctions re matters (1) that are not before this Court (e.g., those raised by Defendants' pending Motion to Dismiss); (2) that are irrelevant to the pro hac vice admission issue presented herein; and (3) as to which Defendants' position has no factual or legal merit in any event.
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The Proof of Service attached to Defendants' removal papers states that the same were served on April 10, 2008, via "electronic means." Plaintiff received no such "electronic service," via email or otherwise. Instead, Plaintiff received Mr. Moore's removal papers by mail on or about April 15, 2008, after they had been postmarked by Mr. Moore on April 11, 2008. See Gieleghem Decl., ¶ 2, Exh. A (envelope postmark). The first electronic notification/service re this case that Plaintiff received, via the PACER system, was on April 24, 2008. Id., ¶ 3, Exh. B (PACER email notification).
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REPLY IN SUPPORT OF PLAINTIFF'S OBJECTION TO PRO HAC VICE ADMISSION OF SCOTT M. MOORE, CASE NO. 3:08-CV-01896-PJH

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See Plaintiff's Motion to Remand, Exhibit A (April 15, 2008 fax letter), p. 2.3 (A duplicate copy of this letter is attached hereto as Exhibit C for this Court's convenience.) Despite this notification and request, Mr. Moore did not provide Plaintiff with a copy of his Application. Plaintiff obtained a copy of the Application, via the PACER system, only after this Court had granted the Application on or about April 17, 2008. See Gieleghem Decl., ¶ 4. Given the above, Mr. Moore's Application was not timely served, such that Plaintiff had an opportunity to be heard on the same before this Court's April 17, 2008 Order was entered. B. The Response Does Not Rebut, Or Even Intelligibly Address, The Issue Presented: Mr. Moore Engaged In The Practice Of Law In California From 2001 To At Least The End Of February, 2008 In his Response, Mr. Moore expressly admits that he maintained a law office in San Francisco through the end of February, 2008. See Response, p. 6, lns. 1 - 3 (Mr. Moore's "San Francisco office had closed on the 28th of February, 2007"). Mr. Moore also impliedly admits ­ by not disputing the point ­ the Complaint allegations to the effect that Mr. Moore incorporated "Moore International Law Office, A Professional Corporation" in California in 2001; and that Mr. Moore provided legal services to California residents, pursuant to retentions entered into in California, as alleged. See, e.g., Complaint, ¶¶ 15-18. Mr. Moore also implied admits ­ again, by not disputing the point ­ that his actions as alleged in the Complaint amount to the (unlicensed) practice of law, e.g., advising Plaintiff in California, pursuant to a retention entered into in California, about the law of foreign jurisdictions, etc. Id. 4 Given these express and implied admissions, Mr. Moore's Response boils down to an

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See Gieleghem Decl., ¶ 4, Exh. C.
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See Plaintiff's Objection, p. 2 n. 1 (citing Bluestein v. State Bar, 13 Cal.3d 162, 174 (1974) and Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 17 Cal.4th 119 (1998)).
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REPLY IN SUPPORT OF PLAINTIFF'S OBJECTION TO PRO HAC VICE ADMISSION OF SCOTT M. MOORE, CASE NO. 3:08-CV-01896-PJH

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argument that, even though Mr. Moore was "regularly engaged in the practice of law in the State of California" from 2001 through at least the end of February, 2007, he is entitled to pro hac vice admission because he allegedly is not currently practicing law in this State. In responding to this argument, Plaintiff submits that is significant that nowhere in Mr. Moore's Response does he state that he is not continuing to engage in actions alleged in the Complaint ­ e.g., the representation of California residents, pursuant to retentions entered into in California, out of offices maintained in this state. Instead, Mr. Moore merely disclaims, in his Declaration, that: "I am not engaged in the practice of law in the State of California." See Response, Exh. D (Moore Declaration), ¶ 3. This disclaimer is at best insufficient as lacking foundation; at worst, it is evasive. This is because Mr. Moore takes the position that he did not "engage in the practice of law in the State of California" in acting as alleged in the Complaint, e.g., representing California clients pursuant to retentions entered into in California. As the cases cited by Plaintiff confirm, such activities amount to the unlicensed practice of law in California, regardless of whether Mr. Moore accepts this. Plaintiff respectfully submits that, given the circumstances, Mr. Moore bore the burden of setting forth facts that would allow this Court to determine whether his disclaimer is true. Mr. Moore has not met this burden. Further, and even assuming for the purposes of argument that Mr. Moore in fact is no longer currently "practicing law in California" under the controlling legal definition, he has not rebutted Plaintiff's showing that Mr. Moore engaged in the practice of law in this state between 2001 and the end of February, 2007. This Court's Civil Local Rules do not define the term "regularly" in the context of Civil L.R. 11-3(b). Plaintiff submits, however, that the practice of law in California for such a six-year period meets the definition of "regularly practiced," even if Mr. Moore in truth is not continuing such practice at the moment. Otherwise, an pro hac vice applicant would qualify for admission, regardless of the length of time he had previously practiced in California, provided only that the

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applicant did not have a case or matter pending at the moment the application for admission was made. III. CONCLUSION This Court's restrictions on pro hac vice admission are consistent with the need of the State Bar of California to supervise and regulate attorneys who regularly practice in this jurisdiction. By his own admissions, express and implied, Mr. Moore regularly practiced in California between 2001 and at least the end of February, 2007. Accordingly, Plaintiff respectfully requests that this Court re-address this issue, and bar Moore from admission pro hac vice. Dated: May 27, 2008 GIELEGHEM LAW OFFICE

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s/ Neil Gieleghem Neil Gieleghem Attorneys for Plaintiff Nicholas H. Parker

REPLY IN SUPPORT OF PLAINTIFF'S OBJECTION TO PRO HAC VICE ADMISSION OF SCOTT M. MOORE, CASE NO. 3:08-CV-01896-PJH

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DECLARATION OF NEIL GIELEGHEM I, Neil Gieleghem, declare:

3 1. 4 a witness, could and would testify competently thereto. I am an attorney at law duly admitted 5 to practice before all the courts of the State of California, and the United States District Courts, 6 and I am counsel of record for Plaintiff Nicholas Parker. 7 2. 8 or about April 15, 2008, by mail. Attached hereto as Exhibit A is a true and correct copy of the 9 envelope, bearing a postmark of April 11, 2008, in which these papers were received by me. No 10 Ex Parte Application for admission pro hac vice was included with these papers. 11 3. 12 that I received in this case, on April 24, 2008. 13 4. 14 Defendants as to their improper removal, I notified Defendants, by a letter faxed on or about that 15 date, that I had not received Mr. Moore's Ex Parte Application for pro hac vice admission, and 16 was objecting to the same. A true and correct copy of my April 15, 2008 letter to Defendants is 17 attached hereto as Exhibit C. Mr. Moore never responded to my request for a copy of his pro 18 hac vice application papers; instead, I only obtained a copy of the same, via the PACER system, 19 after the Application had been granted by this Court. 20 I declare, under penalty of perjury under the laws of the State of California and the federal 21 law, that the foregoing is true and correct. 22 Executed on this 27th day of May, 2008, at Los Angeles, California. 23 24 25 26 27 28
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I have personal knowledge of the facts stated in this declaration and, if called as

I received Defendants' motion to dismiss, with Defendants' removal papers, on

Attached hereto as Exhibit B is a true and correct copy of the first PACER notice

On April 15, 2008, in connection with Plaintiff's attempt to meet-and-confer with

s/ Neil Gieleghem NEIL GIELEGHEM

REPLY IN SUPPORT OF PLAINTIFF'S OBJECTION TO PRO HAC VICE ADMISSION OF SCOTT M. MOORE, CASE NO. 3:08-CV-01896-PJH

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PROOF OF SERVICE STATE OF CALIFORNIA COUNTY OF LOS ANGELES ) ) ss. )

I am a resident of the State of California; over the age of 18 years; and not a party to the within action; and my business address is: 1875 Century Park East, Suite 300, Los Angeles, California 90067. On May 27, 2008 I served the foregoing document described as: PLAINTIFF'S REPLY TO "RESPONSE OF SCOTT MICHAEL MOORE TO PLAINTIFF'S OPPOSITION TO PRO HAC VICE STATUS"; GIELEGHEM DECLARATION [] (BY MAIL ) By placing the true copies of the document(s) listed above in a sealed envelope, fully prepaid, addressed to the recipient(s) listed below. I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in said affidavit. (BY FAX) By transmitting, on this date, via facsimile, the document(s) listed above to the fax number(s) set forth above. (BY EXPRESS MAIL) By placing the document(s) listed above in a sealed Overnight Express envelope and affixing a pre-paid air bill, and causing the envelope to be delivered to an Overnight Express agent for delivery. (BY ELECTRONIC TRANSMISSION) By transmitting via electronic mail the document(s) listed above to each recipient listed below (via PACER system).

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Scott Michael Moore, Esq. Moore International Law Offices, P.C. 45 Rockefeller Plaza, Suite 2000 (630 5th Avenue, Suite 2000) New York, New York 10111 Tel: (212) 322-3474 Fax: (212) 332-3475 [email protected] Attorneys for Defendants I declare under penalty of perjury under the laws of the State of California, and the United States of America, that the above is true and correct. Executed on May 27, 2008, in Los Angeles, CA. s/ Neil Gieleghem Neil Gieleghem

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REPLY IN SUPPORT OF PLAINTIFF'S OBJECTION TO PRO HAC VICE ADMISSION OF SCOTT M. MOORE, CASE NO. 3:08-CV-01896-PJH

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