Free Memorandum in Opposition - District Court of California - California

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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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) ) 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. ) )

NICHOLAS H. PARKER, an individual,

CASE NO. 3:08-CV-01896-PJH Hon. Phyllis J. Hamilton PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION TO DISMISS; DECLARATION OF NEIL GIELEGHEM Date: Time: Courtroom: Wednesday, June 4, 2008 9:00 a.m. Courtroom 3, 17th Floor

[Nb. Plaintiff's Motion to Remand, etc. noticed for same date and time; filed with Objections to Declaration of Scott M. Moore and Objection to Pro Hac Vice Admission]

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TABLE OF CONTENTS INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 FACTUAL AND PROCEDURAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Defendants Engaged In The Unlicensed Practice Of Law In California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Additional Facts Bearing On The Pleading Challenges Asserted By Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Defendants Ignored Plaintiff's Meet-And-Confer . . . . . . . . . . . . . . . . . . . . . . 4

LEGAL ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. Defendants' Fed. R. Civ. P. 12(b)(6) Limitations Challenge Should Be Denied, Because The Alleged Expiration Of The Statute Cannot Be Determined From The Face Of The Complaint; And Because Plaintiff's Claims Are Not Time-Barred Given Statutory Tolling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Plaintiff Has Not Failed To Join Fed. R. Civ. P. 19 Necessary Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Plaintiff Is The Fed. R. Civ. P. 17 Real Party In Interest . . . . . . . . . . . . . . . . 10 Plaintiff Has Article III Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Defendants Cannot Assert The Conditional Defense Of "Unclean Hands" By Way Of A Fed. R. Civ. P. 12(b)(6) Motion; And Plaintiff Did Not Act Inequitably In Any Event . . . . . . . . . . . . 11 Plaintiff Is Entitled To Recover His Just Costs And Actual Expenses, Including Attorney Fees, Incurred In Responding To Defendants' Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

DECLARATION OF NEIL GIELEGHEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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TABLE OF AUTHORITIES

Alliance For Environmental Renewal, Inc. v. Pyramid Crossgates Co. 436 F3d 82 (2nd Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 AVCO Corp. v. Precision Air Parts, Inc., 676 F.2d 494 (11th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Circle Industries USA, Inc. v. Parke Const. Group, Inc., 183 F.3d 105 (2nd Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Dou Yee Enterprises (S) PTE, Ltd. v. Advantek, Inc., 149 F.R.D. 185 (D MN 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Gotro v. R & R Realty Group, 69 F.3d 1485 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Hess v. Gray, 85 F.R.D. 15 (ND IL 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Ilan-Gat Engineers, Ltd. v. Antigua Int'l Bank, 659 F.2d 234 (DC Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 McCalden v. California Library Ass'n, 955 F2d 1214 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Moore v. Permanente Medical Group, Inc., 981 F.2d 443 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Morris v. Bridgestone/Firestone, Inc., 985 F.2d 238 (6th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Sacks v. Office of Foreign Assets Control, 466 F3d 764 (9th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Shelton v. Exxon Corp., 843 F.2d 212 (5th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Shermoen v. United States, 982 F.2d 1312 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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Suder v. Blue Circle, Inc., 116 F.3d 1351 (10th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Supermail Cargo, Inc. v. United States, 68 F.3d 1204 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Tenner v. Zurek, 168 F.3d 328 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Thomas v. United States, 189 F.3d 662 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Federal Rules Fed. R. Civ. P. 12(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5, 6, 11 Fed. R. Civ. P. 12(b)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 9 Fed. R. Civ. P. 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 11 Fed. R. Civ. P. 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 9-11

Federal Statutes 28 U.S.C. § 1447(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 12-14

State Cases Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 17 Cal.4th 119 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Bluestein v. State Bar, 13 Cal.3d 162 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Flatt v. Sup.Ct. (Daniel), 9 Cal.4th 275 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Responsible Citizens v. Sup.Ct. (Askins), 16 Cal.App.4th 1717 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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State Statutes Cal. Bus. & Prof. Code § 6125 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Cal. Code Civ. Proc. § 340.6(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

Other Authorities CRPC 3-700(A)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 30 Cal. Jur. 3d (2008) Estoppel and Waiver § 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Schwarzer, Tashima & Wagstaff, Cal. Prac. Guide: Fed. Civ. Pro. Before Trial (The Rutter Group 2008) ¶ 9:159 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 ¶ 9:160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 ¶ 9:164. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 ¶ 9:170 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 ¶ 9:171 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 ¶ 9:194 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 ¶ 9:196 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 ¶ 9:197.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Vapnek, Tuft, Peck & Wiener, Cal. Prac. Guide: Professional Responsibility (The Rutter Group 2008) ¶ 3:47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 ¶ 10:73 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

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I.

INTRODUCTION Each of Defendants' five challenges to the Complaint is merciless, and their motion to

dismiss should be denied. Defendants' first, Fed. R. Civ. P. 12(b)(6) statute of limitations challenge fails because the expiration of the statute cannot be determined from the face of the Complaint. Accordingly, a motion to dismiss should not be granted. Further, the limitations period did not expire, given statutory tolling under California law. Defendants' second, Fed. R. Civ. P. 12(b)(7) failure to join necessary parties challenge fails, because Defendants have not met their burden of proof ­ and cannot meet their burden of proof ­ of showing that the purportedly "missing" parties are indispensable under Fed. R. Civ. P. 19. Defendants' third, real party in interest challenge fails, because the purported "missing" parties are not real parties in interest under Fed. R. Civ. P. 17. Defendants' fourth, Article III standing challenge fails because Plaintiff undeniably has standing as the client who suffered injury in fact as result of Defendants' unlicensed practice of law and related misconduct. Defendants' fifth, unclean hands challenge fails, because Defendant cannot assert such a conditional defense by way of a motion to dismiss; and because Defendants have failed to make any showing that Plaintiff acted inequitably. As suggested by the above, and as shown below, Defendants' motion to dismiss is based on gross misrepresentations of the operative facts, and ignores the controlling law. Plaintiff has pending a motion to remand that is scheduled for hearing with Defendants' meritless motion to dismiss. The jurisdictional issues raised by the remand motion should be resolved before the parties and this Court address Defendants' challenge to the Complaint. Accordingly, Plaintiff requested that Defendants stipulate that their motion to dismiss be continued to date that would allow for this Court to rule on the remand motion before Plaintiffs were forced to incur the legal fees and costs of preparing this Opposition. Defendants ignored this request. Accordingly, and assuming that this Court remands this
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case, the fees and costs that Plaintiff was forced to incur in the preparation and filing of this Opposition should be added to the fees and costs to which Plaintiff is entitled under 28 U.S.C. § 1447(c). II. FACTUAL AND PROCEDURAL BACKGROUND Given the narrow focus of the issues raised by the five pleading challenges asserted by Defendants, the relevant underlying facts and allegations of the Complaint can be summarized briefly. A. Defendants Engaged In The Unlicensed Practice Of Law In California

The Complaint names three Defendants: (1) Scott Michael Moore, an individual (Complaint, ¶ 6); (2) Moore International Law Office, A Professional Corporation, a business entity, form unknown (id., ¶ 8); and (3) Moore International Law Office, A Professional Corporation," a California corporation (hereinafter "MILOCA"). Id., ¶ 7. As the cited allegations of the Complaint indicate, MILOCA was/is a California corporation having its principal place of business in San Francisco, California. The Complaint alleges California state law claims for unfair business practices (First Cause of Action) and legal malpractice (Second Cause of Action) against the three Defendants. These California state law claims are based on the following allegations: ! None of the Defendants is, or has ever been, admitted to practice law in

California. Complaint, ¶ 13. ! Between 2001 and at least February, 2007, Defendants practiced law in San

Francisco in the guise of "Moore International Law Offices, A Professional Corporation," operating out of so-named offices in San Francisco. MILOCA apparently was incorporated by Defendants to facilitate their unlicensed practice of law in this state. Id.. ¶ 14. ! Plaintiff Nicholas Parker, a California resident throughout the relevant period,

retained Defendants in February, 2003, via MILOCA's offices in San Francisco, to represent him in regards to a dispute arising out of his brother's misappropriation of certain real property located in Honduras. Id., ¶¶ 17-18; see also Exhibit A to Complaint (February 24, 2003 retainer letter on MILOCA letterhead, with San Francisco address).
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!

In the course of said retention, Defendants repeatedly advised Plaintiff in

California as to the law of foreign jurisdictions (e.g., Honduras) and the laws of sister states. Throughout said retention (i.e, from 2003 through 2007), Defendants maintained law offices in California, in the guise of "Moore International Law Offices." Id., ¶¶ 19-24. ! In the course of said representation, Plaintiff paid Defendants over $151,000 in

legal fees and costs, in part in connection with a federal district court lawsuit that Defendants filed on Plaintiff's behalf in Florida. Id., ¶ 25. These allegations are sufficient to support causes of action against Defendants for unfair business practices and legal malpractice, based on Defendants having engaged in the unlicensed practice of law in California. See, e.g., Bluestein v. State Bar, 13 Cal.3d 162, 174

(1974)("Giving legal advice [in California] regarding the law of a foreign country . . . constitutes the practice of law"; such legal advice by non-admitted attorney constitutes the unlicensed practice of law within the meaning of Cal. Bus. & Prof. Code § 6125); Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 17 Cal.4th 119 (1998)(New York lawyers, not admitted in California, engaged in illegal practice of law when advising California client, in California).1 B. Additional Facts Bearing On The Pleading Challenges Asserted By Defendants As addressed below, certain of Defendants' pleading challenges are based on the theory/claim that the Florida federal court lawsuit referenced above ­ Nicholas H. Parker, et al. v. F. Bayard Parker, et al., USDC Mid. Dist. FL Case No. 8:04 CV 00041 (hereinafter "Florida Lawsuit") ­ was filed on behalf of a Parker family trust (the Judith Hockmeyer Trust) (hereinafter "Parker Trust"); and/or that the Parker Ttrust otherwise is a real party in interest to
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Given the focus of the pleading challenges asserted by Defendants, this Court does not have to address the issue of whether Defendants' conduct, as alleged, amounts to the unlicensed practice of law in California. Plaintiff notes, however, that to the extent that their position is intelligible, Defendants appear to believe that they could practice law in California ­ e.g., by maintaining a law office in San Francisco for six or more years, out of which they advised and represented California residents such as Plaintiff ­ provided that Defendants limited their practice to "international matters" and/or lawsuits in other jurisdictions. This assertion is inconsistent with controlling California law cited above.
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the claims made in this case. Any such contention is demonstrably false. As the pleadings show, the Florida Lawsuit was filed by Defendants on behalf of Plaintiff in his individual capacity, and on behalf of Plaintiff's brother, John Parker, in his individual capacity. See, e.g., attached Declaration of Neil Gieleghem ("Gieleghem Decl."), ¶ 2, Exh. A (Florida Lawsuit Complaint). Further, the relief sought in the Florida Lawsuit was damages to be awarded to Plaintiff and John Parker in their individual capacities, not any recovery to or on behalf of the Parker Trust. See, Exh. A (Florida Lawsuit Complaint), pgs. 23-25.2 Consistent with this, the Judgments that ultimately were entered in the Florida Lawsuit were entered on behalf of Plaintiff and his brother, not on behalf of the Parker Trust. See Gieleghem Decl., ¶ 3, Exh. B (March 15, 2007 letter from Defendants, attaching Judgments). The Complaint references the Parker Trust (Judith Hockmeyer Trust) by name in several places, but only in the context of Plaintiff's brother, F. Bayard Parker (the defendant in the Florida Lawsuit), having fraudulent induced Plaintiff and John Parker to authorize payments to him out of the Trust. See, e.g., Exh. A (Complaint), ¶ 18, p. 7, lns. 17-20; ¶ 22, p. 9, lns. 3-6. Nothing in the Complaint remotely suggests that there was an attorney-client relationship between the Parker Trust, on the one hand; and Defendants herein, on the other hand, such that the Trust would have standing to assert the legal malpractice and unfair business practices causes of action alleged by Plaintiff. C. Defendants Ignored Plaintiff's Meet-And-Confer

Plaintiff received Defendants' motion to dismiss, with Defendants' removal papers, on or about April 15, 2008. See Gieleghem Decl., ¶ 4. Defendants' motion papers did not give any notice of a hearing date. On April 15, 2008, in connection with Plaintiff's attempt to meet-andconfer with Defendants as to their improper removal, Plaintiff notified Defendants that Plaintiff was under no obligation to respond to the motion to dismiss until service of a notice of hearing

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The Complaint filed by Defendants in the Florida Lawsuit in January 2004 lists their office address as 388 Market Street, San Francisco, CA. See Gieleghem Decl., Exh. A, pgs. 1 & 25.
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on the same. See Gieleghem Decl., ¶ 4, Exh. C (April 15, 2008 fax letter). Plaintiff received no response from Defendants, and began to prepare his motion to remand in anticipation of a June 6, 2008 hearing date for the same. However, shortly before the anticipated remand motion was ready for filing and service, Plaintiff received notice, via the PACER system, that Defendants' motion to dismiss had been set for hearing on June 4, 2008. See Gieleghem Decl., ¶ 5. Plaintiff completed his remand motion, setting it for hearing on same June 4, 2008 date (the earliest practicable date) to preserve the resources of both this Court and the parties. However, the pendency of the two motions meant that, unless the motion to dismiss was continued, Plaintiff would be forced to prepare an opposition to the motion to dismiss before this Court ruled on the jurisdictional issues raised by the remand motion. See Gieleghem Decl., ¶ 6. Accordingly, and in an effort to avoid incurring potentially unnecessary fees and costs, Plaintiff on April 24, 2008 requested that Defendants stipulate that their motion to dismiss could be continued to a workable date (e.g., 30 days) after this Court had ruled on the remand motion. See Gieleghem Decl., ¶ 7, Exh. D (April 24, 2008 letter). Plaintiff warned Defendants that, if they refused to so stipulate, and the remand motion was granted, Plaintiff would seek the fees and costs incurred in preparing such an opposition pursuant to 28 U.S.C. § 1447(c). Id. Defendants ignored this request, which forced Plaintiff to prepare and file this Opposition, thereby potentially increasing the fees and costs that would be incurred by Plaintiff if the case is remanded. Id. III. LEGAL ANALYSIS A. Defendants' Fed. R. Civ. P. 12(b)(6) Limitations Challenge Should Be Denied, Because The Alleged Expiration Of The Statute Cannot Be Determined From The Face Of The Complaint; And Because Plaintiff's Claims Are Not Time-Barred Given Statutory Tolling Defendants cannot raise a statute of limitations challenge by way of a Fed. R. Civ. P.

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12(b)(6) motion to dismiss, because the alleged expiration of the statute cannot be determined from the face of the Complaint. Under such circumstances, a statute of limitations challenge must be raised by way of a motion for summary judgment, not a motion to dismiss. See Schwarzer, Tashima & Wagstaff, Cal. Prac. Guide: Fed. Civ. Pro. Before Trial (The Rutter Group 2008) ¶ 9:194 (citing AVCO Corp. v. Precision Air Parts, Inc., 676 F.2d 494, 495 (11th Cir. 1982); Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir. 1995)). The Complaint alleges that Defendants withdrew "from the representation on or about March 15, 2007, by way of a letter bearing that date which they sent to Plaintiff by courier." See Complaint, ¶ 28, p. 8, lns 1-3. For the purposes of a Fed. R. Civ. P. 12(b)(6) motion to dismiss based on a statute of limitations challenge, these well-pleaded allegations must be taken at face value. Further, and as shown below, these allegations are demonstrably true. Defendants concede that, under California law, the statute of limitations on a legal malpractice claim is tolled as long as "[t]he attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred." See Cal. Code Civ. Proc. § 340.6(a)(2); see Defendants' MPA, p. 8. The Complaint was filed on or about March 14, 2008, i.e., less than one year after the termination of the representation as alleged in the Complaint. Hence, on the face of the pleading, the Complaint is not time barred, and Defendants can assert such an alleged limitations bar only by way of a summary judgment motion. Accordingly, Defendants' motion to dismiss should be denied. This is not merely a "procedural defense," because any such summary judgment motion would be patently meritless. The facts are that Defendants did not withdraw from the representation until the March 15, 2007 date stated, by way of the letter alleged. That March 15, 2007 letter states: This letter is to regretfully, effective immediately this date [i.e., March 15, 2007], resign, withdraw and terminate representation under our engagement letter dated 24 February 2003 . . . . See Gieleghem Decl., Exh. B (March 15, 2007 letter), p. 1 (underlining added). This express

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and unequivocal admission that the representation did not end until March 15, 2007 is binding on Defendants. Defendants try to argue around this admission by claiming that the representation ended at an earlier date, when they were contacted by Plaintiff's current counsel (Neil Gieleghem, Esq.) as part of his attempt to obtain information from Defendants as to their handling of the underlying case. See Defendants' MPA, pgs. 5-6. This argument fails, because the

communications in question ­ even as characterized by Defendants ­ cannot be reasonably interpreted as terminating the representation. The "evidence" on which Defendants base their "earlier termination" argument consists of the following paragraphs from Defendant Scott M. Moore's supporting Declaration: 8. On the 8th, 9th, and 12th of March, 2007, Neil Gieleghem, attorney

for Nicholas H. Parker in this action, placed surprise and adversarial telephone voice mail messages for me in New York, while I was engaged in other matters, and I was not informed prior thereto that Nicholas H. Parker had hired Attorney Gieleghem. 9. In the voice mail message left for me by Attorney Neil Gieleghem

on the 12th of March, 2007, Mr. Gieleghem specifically stated that he represented Nicholas H, Parker, and that there was to be no transaction regarding the Honduran property without authorization from Attorney Gieleghem. See Moore Decl., ¶¶ 8-9. Defendants now claim that they were "given to understand on the 12th of March, 2007, that [their] representation was effectively ended" as of that date. See Moore Decl., ¶ 10. But this is not what Defendants communicated to Plaintiff in their March 15, 2007 letter.3 Reduced to its essentials, Defendants' position is that a legal representation ends, such that the statute of limitations begins to run, whenever the attorney subjectively decides that the

3

28

With this Opposition Plaintiff is filing Objections to the Moore Declaration.
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attorney-client relationship is over; and that this "subjective termination date" controls for statute of limitations purposes, even if the attorney communicated a different, later date to the client, and never disclosed his "subjective decision." Defendants offer no legal support for this argument, because there is none. Indeed, the controlling law is to the contrary. See, e.g., Vapnek, Tuft, Peck & Wiener, Cal. Prac. Guide: Professional Responsibility (The Rutter Group 2008) ¶ 10:73 (given ethical requirement, under CRPC 3-700(A)(2), to avoid foreseeable prejudice to the client, recommended steps for withdrawal, where no litigation pending, include written notice to client that representation has ended and that client file will be provided); Cf. id., ¶ 3:47 (in determining when attorney-client relationship commences, some courts look to client's reasonable expectations, citing Responsible Citizens v. Sup.Ct. (Askins), 16 Cal.App.4th 1717, 1733 (1993); Flatt v. Sup.Ct. (Daniel), 9 Cal.4th 275, 281 (1994)). In addition, Defendants are estopped from claiming that the representation ended prior to March 15, 2007. The principles of equitable estoppel are well established. An estoppel is applicable where the conduct of one side has induced the other side to take such a position that the latter would be injured if the first side should be permitted to repudiate its acts. Application of the doctrine depends on the particular facts of each case, and estoppel is available in actions at law as well as suits in equity. See generally 30 Cal. Jur. 3d (2008) Estoppel and Waiver § 3. Here, Defendants expressly and unequivocally told Plaintiff that the representation ended on March 15, 2007. Plaintiff reasonably relied on that statement of position (in terms of calendaring the deadline for the filing of their malpractice claim). Accordingly, Defendants are estopped from arguing that the representation ended at an earlier date.4

4

The statutory tolling under Cal. Civ. Proc. Code § 340.6 makes irrelevant Defendants' conclusory and unsupported allegations to the effect that Plaintiff knew at an earlier date that Defendants were engaged in the unlicensed practice of law. Even if Plaintiffs knew that Defendants could not practice law in California (by maintaining an office in San Francisco, etc.), the statute of limitations was tolled until the representation ended. Further, Defendants' "earlier knowledge" argument is based on the theory that Plaintiff, as a lay client, was placed "on notice" by Defendants' letterhead that Defendants could not practice
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B.

Plaintiff Has Not Failed To Join Fed. R. Civ. P. 19 Necessary Parties

A Fed. R. Civ. P. 12(b)(7) motion to dismiss for failure to join a party should be granted only if the court determines: (1) joinder of the party is not possible, and (2) the party is, in fact, "indispensable." Cal. Practice Guide: Fed. Civ. Pro. Before Trial, supra, ¶ 9:159 (citing Shermoen v. United States, 982 F.2d 1312, 1317 (9th Cir. 1992); Thomas v. United States, 189 F.3d 662, 667 (7th Cir. 1999)). Accordingly, if the party is merely "necessary," a motion to dismiss should be denied "except in the most exceptional cases," even if the necessary party cannot be joined. Cal. Practice Guide: Fed. Civ. Pro. Before Trial, supra, ¶ 9:160 (citing Shelton v. Exxon Corp., 843 F.2d 212, 216 (5th Cir. 1988)).5 The burden of proof is on the party moving to dismiss for failure to join an indispensable party. Cal. Practice Guide: Fed. Civ. Pro. Before Trial, supra, ¶ 9:170 (citing Ilan-Gat Engineers, Ltd. v. Antigua Int'l Bank, 659 F.2d 234, 240 (DC Cir. 1981)). A Fed. R. Civ. P. 19 objection to non-joinder of parties usually requires an evidentiary showing (e.g., affidavits, discovery materials) as to the reasons why the absent party's presence is necessary for a just adjudication. Cal. Practice Guide: Fed. Civ. Pro. Before Trial, supra, ¶ 9:171 (citing Hess v. Gray, 85 F.R.D. 15, 21 (ND IL 1979); Dou Yee Enterprises (S) PTE, Ltd. v. Advantek, Inc., 149 F.R.D. 185, 187 (D MN 1993)).6

law in California in the manner alleged. See Defendants' MPA, p. 3, lns. 1-8 (references to Defendants' letterhead, attached as Exhibit A to Complaint); p. 6, ln. 23 - p. 7, ln. 2 ("letterhead notice" argument). This argument is specious, particularly given Defendants' continuing assertion that they could practice out of a California office as "international attorneys."
5

A motion to dismiss also should be denied where the absent party (whether necessary or indispensable) is subject to service of summons, and his or her joinder would not deprive the court of subject matter jurisdiction. The motion to dismiss will be treated as a motion to compel joinder of the absent party, and plaintiff will be granted leave to add the party to his or her action. Cal. Practice Guide: Fed. Civ. Pro. Before Trial, supra, ¶ 9:161 (citing Cunningham v. Municipality of Metropolitan Seattle, 751 F.Supp. 885, 896­897 (WD WA 1990)).
6

As a practical matter, a defendant normally will file such a motion only if the joinder will
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Defendants' Fed. R. Civ. P. 19 challenge is based on the theory that the Parker Trust, and its two other beneficiaries in addition to Plaintiff, are necessary parties. See Defendants' MPA, p. 9, ln. 19 - p. 20, ln. 2. As shown above, however, the Parker Trust was not a party to the Florida Lawsuit, or a client of Defendants. Accordingly, neither the Trust, nor any beneficiaries of the Trust sub nomine, would have standing to assert similar claims against Defendants. Defendants have not met their burden of proof of showing that (1) joinder of the Parker Trust and/or the other beneficiaries is not possible; and (2) the Trust and/or the other beneficiaries are, in fact, "indispensable." Accordingly, Defendants' motion to dismiss on this ground also should be denied. C. Plaintiff Is The Fed. R. Civ. P. 17 Real Party In Interest

Defendants' real party in interest argument is based on the theory that the real party in interest is the Parker Trust, because Trust funds allegedly were used by Plaintiff to pay Defendants. See Defendants' MPA, p. 10, ln. 8-11. This argument ignores that the underlining retention was between Plaintiff as the client, on the one hand; and Defendants as alleged attorneys, on the other hand. Plaintiff may have authorized payment of Defendants' legal invoices by using Trust monies, but this does not make the Parker Trust a real party in interest to Plaintiff's claims for unfair business practices (based on unlicensed practice of law) and legal malpractice against Defendants based on that retention. The Parker Trust is no more a real party in interest in this case than would be a bank from which Plaintiff had borrowed the money required to pay Defendants the $150,000 in legal fees and costs they ran up in the Florida Lawsuit. Defendants have offered no legal authorities or analysis that would support a different conclusion. \\\

result in dismissal. Otherwise, the parties' presence could be achieved through defendant's own claims (e.g., impleader or cross-claim). Cal. Practice Guide: Fed. Civ. Pro. Before Trial, supra, ¶ 9:164.
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D.

Plaintiff Has Article III Standing

Defendants' Article III standing argument presumably is brought under Fed. R. Civ. P. 12(b)(1),7 and is based on two theories: (1) Plaintiff allegedly has not suffered "injury in fact" because the Judgment that Defendants obtained "may" be enforceable, such that all of Plaintiff's claimed damages are "purely conjectural" (see Defendants' MPA, p. 11, lns. 3-11); and (2) there allegedly is no "casual connection between the injury and conduct complained of," because "the [Parker Trust] is an independent party not before the Court." Id., lns. 12-18. Both these arguments are meritless. Whether the Judgment is, or is not, collectable is irrelevant to the damages Plaintiff suffered by paying Defendants over $150,000 in legal fees that they were not entitled to charge or collect. Further, and as shown above, Defendants have not made any showing that the Parker Trust has any standing in regards to Plaintiff's claims, whether as a Fed. R. Civ. P. 19 necessary party, a Fed. R. Civ. P. 17 real party in interest, or otherwise. E. Defendants Cannot Assert The Conditional Defense Of "Unclean Hands" By Way Of A Fed. R. Civ. P. 12(b)(6) Motion; And Plaintiff Did Not Act Inequitably In Any Event Defendants' unclean hands argument is a conditional defense that cannot be asserted by way of a Fed. R. Civ. P. 12(b)(6) motion to dismiss. Cal. Practice Guide: Fed. Civ. Pro. Before Trial, supra, ¶ 9:197.1 (where defense disclosed in complaint is conditional rather than absolute, a Fed. R. Civ. P. 12(b)(6) motion to dismiss should be denied, citing McCalden v. California

7

Defendants reference Fed. R. Civ. P. 12(b)(1) in their Notice of Motion, possibly in reliance on cases holding that a lack of standing challenge should be brought under Rule 12(b)(1) because standing is a jurisdictional matter. Cal. Practice Guide: Fed. Civ. Pro. Before Trial, supra, ¶ 9:196 (citing Alliance For Environmental Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 88, fn. 6 (2nd Cir. 2006)). The Ninth Circuit, however, holds that a Fed. R. Civ. P. 12(b)(6) motion to dismiss lies where the complaint reveals on its face that plaintiff lacks standing. Cal. Practice Guide: Fed. Civ. Pro. Before Trial, supra, ¶ 196 (citing Sacks v. Office of Foreign Assets Control, 466 F.3d 764, 771 (9th Cir. 2006)).
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Library Ass'n, 955 F.2d 1214, 1219 (9th Cir. 1990). In McCalden, supra, the complaint alleged the defendant's breach of contract, as well as facts showing threats of violence from third parties that may have made the defendant's performance impossible (excusing defendant's breach). But these allegations disclosed only a conditional defense because, to claim impossibility, the defendant would have to show it took reasonable measures to perform despite the danger. The plaintiff, however, was under no duty to plead this, and such facts lay outside the pleadings. Accordingly, the complaint was not subject to dismissal. 955 F.2d at 1219. The same analysis, and the same result, applies here. Defendants' unclean hands argument is based on matters outside of the allegations of the Complaint. In effect, Defendant is attempting what amounts to a "stealth" summary judgment motion, without complying the procedural or substantive requirements. Plaintiff's position is, once again, not merely a "procedural defense." Any such summary judgment, based on "unclean hands" or any other equitable defense, would be meritless. The purported "bad faith" alleged by Defendants has nothing to do with the latter's unlicensed practice of law in California. See Defendants' MPA, p. 12, lns. 1-15. Instead, the purported "bad faith" claimed by Defendants amounts to nothing more than unsupported and conclusory assertions that Plaintiff made "strategic decisions" in regards to the Florida Lawsuit, and/or chose not to enforce an uncollectable judgment. Id. Even if true, these allegations do not bar Plaintiff from pursuing claims against Defendants for unfair business practices based on the unlicensed practice of law, and for the malpractice committed by Defendants in the course of that representation. F. Plaintiff Is Entitled To Recover His Just Costs And Actual Expenses, Including Attorney Fees, Incurred In Responding To Defendants' Motion 28 U.S.C. § 1447(c) provides, in pertinent part: "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including

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attorney fees, incurred as a result of the removal." See also Morris v. Bridgestone/Firestone, Inc., 985 F.2d 238, 240 (6th Cir. 1993). The statutory purpose of such an award of costs and fees is to deter the possibility of abuse, unnecessary expense and harassment if a defendant removes improperly. Circle Industries USA, Inc. v. Parke Const. Group, Inc., 183 F.3d 105, 109 (2nd Cir. 1999). Although an award of fees and costs under 28 U.S.C. § 1447(c) is not mandatory, such an award does not require a showing of that the removal was "frivolous," "vexatious," lacked an "objectively reasonable basis," or was made in "bad faith," as required by other theories/grounds under which sanctions might be imposed. Moore v. Permanente Medical Group, Inc., 981 F.2d 443, 446 (9th Cir. 1992); Morgan Guar. Trust Co. v. Republic of Palau, 971 F.2d 917, 923-924 (2nd Cir. 1992); Tenner v. Zurek, 168 F.3d 328, 329-330 (7th Cir. 1999); Suder v. Blue Circle, Inc., 116 F.3d 1351, 1352 (10th Cir. 1997). "Just costs" under 28 U.S.C. § 1447(c) include filing fees, service of process fees, and attorneys fees, regardless of whether the plaintiff has in fact paid such fees, e.g., where the case is being handled on a contingency fee or pro bono basis. See Gotro v. R & R Realty Group, 69 F.3d 1485, 1448 (9th Cir. 1995); see also Tenner v. Zurek, supra, 168 F.3d 328 at 320 (just costs include document preparation expenses and travel costs). Because Defendants improperly removed this case, and then refused to stipulate to continue the hearing on their motion to dismiss until after the jurisdictional issue had been resolved, Plaintiff was forced to incur the attorneys fees and costs required to prepare and file this Opposition. Under such circumstances, on remand these additional fees and costs should be included in those sought by Plaintiff in his pending remand motion pursuant to 28 U.S.C. § 1447(c). As of the filing of this Opposition, Plaintiff has incurred $6673.56 in attorney fees and costs in connection with Defendants' motion to dismiss, as documented in the attached Gieleghem Declaration. See Gieleghem Decl., ¶ 8. Plaintiff anticipates incurring an additional $350.00 through any hearing on this motion. See Gieleghem Decl., ¶ 9.

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Accordingly, Plaintiff respectfully requests that, in addition to denying Defendants' motion to dismiss, this Court order, in connection with any remand, that Defendants to reimburse Plaintiff said fees and costs pursuant to 28 U.S.C. § 1447(c), which fees and costs will total $7023.56 through hearing. Gieleghem Decl., ¶¶ 8-9. IV. CONCLUSION For the reasons stated above, Plaintiff respectfully requests that this Court deny Defendants' motion to dismiss; and order Defendants, pursuant to 28 U.S.C. § 1447(c), to reimburse Plaintiff his just costs and expenses, including attorney fees, in the amount of $7023.56 through hearing, should this case be remanded.

Dated: May 9, 2008

GIELEGHEM LAW OFFICE

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

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DECLARATION OF NEIL GIELEGHEM I, Neil Gieleghem, declare: 1. I have personal knowledge of the facts stated in this declaration and, if called as

a witness, could and would testify competently thereto. I am an attorney at law duly admitted to practice before all the courts of the State of California, and the United States District Courts, and I am counsel of record for Plaintiff Nicholas Parker. 2. Attached hereto as Exhibit A is a true and correct copy of what I am informed and

believe, after reasonable inquiry, is the Complaint filed in Nicholas H. Parker, et al. v. F. Bayard Parker, et al., USDC Mid. Dist. FL Case No. 8:04 CV 00041 (hereinafter "Florida Lawsuit"), in which Defendants were counsel of record for Plaintiff herein. I obtained this Complaint from the client case file that was forwarded to this office by Defendants. 3. Attached hereto as Exhibit B is a true and correct copy of a March 15, 2007 letter

from Defendants to Plaintiff (copy to me), which letter attached the Judgments Defendants claim were entered in the Florida Lawsuit. 4. I received Defendants' motion to dismiss, with Defendants' removal papers, on

or about April 15, 2008. Defendants' motion papers did not give any notice of a hearing date. On April 15, 2008, in connection with Plaintiff's attempt to meet-and-confer with Defendants as to their improper removal, I notified Defendants, by a letter faxed on or about that date, that Plaintiff was under no obligation to respond to the motion to dismiss until service of a notice of hearing on the same. A true and correct copy of my April 15, 2008 letter to Defendants is attached hereto as Exhibit C. 5. I received no response from Defendants as to my April 15, 2008 letter, and began

to prepare Plaintiff's motion to remand in anticipation of a June 6, 2008 hearing date for the same. On or about April 24, 2008, however, I received notice, via the PACER system, that this case had been reassigned to Hon. Phyllis J. Hamilton, and that Defendants had noticed their Motion to Dismiss for hearing on June 4, 2008. 6. On receiving notice of the June 4, 2008 hearing, I completed Plaintiff's remand

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motion, setting the same for hearing on same June 4, 2008 date (the earliest practicable date) to preserve the resources of both this Court and the parties. However, the pendency of the two motions meant that, unless the motion to dismiss was continued, Plaintiff would be forced to prepare an opposition to the motion to dismiss before this Court ruled on the jurisdictional issues raised by the remand motion. 7. Accordingly, and in an effort to avoid incurring potentially unnecessary fees and

costs, on or about April 24, 2008 I requested, by way of a faxed letter, that Defendants stipulate that their motion to dismiss could be continued to a workable date (e.g., 30 days) after this Court had ruled on the remand motion. A true and correct copy of my April 24, 2008 letter is attached hereto as Exhibit D. Defendants ignored this request, which forced Plaintiff to prepare and file this Opposition, thereby increasing the fees and costs that would be incurred by Plaintiff on removal. 8. My billing rate in this case is $350.00. As of the filing and service of this

Opposition, Plaintiff has incurred the following fees and costs in connection with Defendants' motion to dismiss: Work Performed/Costs April 24, 2008 Prepare meet-and-confer letter to Defendants re stipulation to continue hearing on Defendants' motion to dismiss; calendar hearing and opposition deadlines. Time: .5 hrs @ $350/hr = Fax: 3 pgs. @ .25 = $175.00 .75

April 25, 2008:

Review email from client re removal and motion to dismiss; review USDC ND CA Local Rules re pro hac admission requirements and service of application; t/c from court clerk (Nicole) re e-filing issue. Time: .5 hrs @ $350/hr = $175.00

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April 29, 2008

Drafting of opposition to motion to dismiss; on-line legal research (Westlaw) re. Time: 1.8 hrs @ $350/hr = Westlaw charges: $630.00 $50.00

May 4, 2008:

Further on-line legal research (Westlaw) re Fed. R. Civ. P. 12(b)(1), (6) and (7) motions to dismiss; drafting of opposition to motion to dismiss; emails to/from client re issues related to motion to dismiss. Time: 5.1 hrs @ $350/hr = Westlaw charges: $1785.00 $65.00

May 5, 2008:

Further on-line legal research (Westlaw) re case authorities for opposition; further drafting of opposition brief; additional emails to/from client re issues raised by motion to dismiss. Time: 2.8 hrs @ $350/hr = Westlaw charges: $980.00 $40.00

May 6, 2008

Review fax from Trust's counsel relating to motion to dismiss issues (standing); t/c office of Trust's counsel re same; email to client re; review court filings by Defendants via PACER. Time: .6 hrs @ $350.00 = PACER charges: Fax: 4 pgs. @ .25/pg. $210.00 .54 1.00

May 7, 2008

Further drafting opposition; on-line legal research (Westlaw); preparation of Objections to Moore Declaration and Objections

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to Pro Hac Vice admission. Time: 5.5 hrs @ $350.00 = Westlaw charges: 1925.00 $45.00

Coordinate duplication and service; Overnight mail Chambers Copies to Court; efiling, etc. Time: 1.5 hrs @ $350.00 = Copying: 240 pgs @ .22/pg Postage: Overnight mail to Court (Chambers Copies) $12.50 $525.00 $52.80 .97

Total as of Opposition filing:

$6673.56

In addition, Plaintiff anticipates that, if Defendants' motion to dismiss proceeds

to hearing, Plaintiff will incur the following additional fees and costs: Work Peformed/Costs [Anticipated] Review of Defendants' Reply papers; preparation for hearing on motion to dismiss issues. Time: 1 hrs @ $350/hr = $350.00

$7023.56

The above-referenced fees and costs are separate from any fees and costs incurred

by Plaintiff in connection with his pending Motion to Remand, which fees and costs are detailed in his pleadings on said Motion. \\\

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I declare, under penalty of perjury under the laws of the State of California and the federal law, that the foregoing is true and correct. Executed on this 9th day of May, 2008, at Los Angeles, California.

s/ Neil Gieleghem NEIL GIELEGHEM

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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 9, 2008 I served the foregoing document described as: PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION TO DECLARATION OF NEIL GIELEGHEM [X] DISMISS;

(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. (BY PERSONAL SERVICE) I delivered such envelope by hand to the office of the addressee.

[] [ ]

[] [ ]

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 9, 2008, in Los Angeles, CA. s/ Neil Gieleghem Neil Gieleghem
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