Southerland v. Woo

998 F. Supp. 2d 89, 2014 U.S. Dist. LEXIS 23944, 2014 WL 704327
CourtDistrict Court, E.D. New York
DecidedFebruary 24, 2014
DocketNo. 99 Civ. 3329(BMC)(LB)
StatusPublished

This text of 998 F. Supp. 2d 89 (Southerland v. Woo) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Southerland v. Woo, 998 F. Supp. 2d 89, 2014 U.S. Dist. LEXIS 23944, 2014 WL 704327 (E.D.N.Y. 2014).

Opinion

MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

This is an action under 42 U.S.C. § 1983 brought by a father and his now-grown children for damages against Timothy Woo, a former caseworker for the New York City Administration for Children’s Services (“ACS”). The current complaint charges that in 1997, Mr. Woo made false statements in order to obtain entry into the family home and then improperly removed the children without a court order, resulting in them being placed into the foster care system. As the case number indicates, the case has a lengthy history that has included appeals and remands from the Second Circuit. See Southerland v. City of New York, 680 F.3d 127 (2d Cir.), rehearing en banc den., 681 F.3d 122 (2d Cir.2012). The matter is currently before the Court on the motion of Brian S. King for leave to appear pro hac vice made on the morning of jury selection. The Court denied the motion on the record and hereby sets forth the basis for its ruling.

BACKGROUND

Plaintiff Southerland has proceeded pro se for most of the long history of this case. However, as the matter approached trial in 2013, the Court received an application to appear pro hac vice from Brian S. King. Mr. King is admitted in New York State but not in this Court. The application was granted in the ordinary course, and the case proceeded to trial with Mr. King as counsel.

[91]*91As shown below, at that trial, Mr. King demonstrated not only a lack of familiarity with federal practice and procedure, but he repeatedly displayed contempt for the Court, and went so far as to make repeated misstatements or misrepresentations to the Court and the jury about the evidence in the case. The trial ended in a hung jury and the Court declared a mistrial, although I am not specifically attributing that to Mr. King’s misconduct.

At a conference that occurred after the mistrial, Mr. King appeared for Mr. Southerland. Immediately following the conference, the Court’s Deputy Clerk received a voicemail message from Mr. Southerland which stated that during the preceding week, Mr. Southerland had terminated Mr. King and that Mr. King therefore had attended the conference without authority. See Southerland v. Woo, No. 99 Civ. 3329 (Order dated Oct. 22, 2012). Mr. King had made no mention of this at the conference. The Court thereupon issued an Order to Show Cause requiring Mr. King to show why he should not be relieved and terminated as Mr. Southerland’s counsel. It further directed Mr. King to serve a copy of the Order on Mr. Southerland, and Mr. King filed a certification that he had done so. Id.

Neither Mr. King nor Mr. Southerland responded to the Order to Show Cause, and, accordingly, the Court entered an Order on October 30, 2013, explaining what had occurred and relieving Mr. King as attorney. Following that, there was substantial motion practice and conferences in preparation for the retrial, some of which Mr. Southerland attended pro se, but Mr. King did not appear again.

On the morning of jury selection, Mr. King was present in Court and announced that he would represent Mr. Southerland at the retrial. Magistrate Judge Bloom, who was selecting the jury, advised Mr. King that since he had been terminated as an attorney in this matter and was not admitted in this Court, he would be required to file a motion for pro hac vice admission. That same morning, Mr. King filed the motion, and I denied it from the bench for the reasons set forth below.

DISCUSSION

The Second Circuit has set for the circumstances under which an unadmitted attorney may proceed in a district court within this Circuit. Admission pro hac vice for one trial does not extend to a subsequent trial in the matter. “Admission pro hac vice is by definition, at most, admission for a single proceeding. An unadmitted attorney who seeks to represent a [party] upon a retrial must secure a second admission pro hac vice.” In re Rappaport, 558 F.2d 87, 88 n. 1 (2d Cir.1977). It is axiomatic that “admission to the Bar of one state does not carry with it the right to practice law anywhere else.” Id. at 89. Moreover, “[j]ust as with a regularly. admitted attorney, one seeking admission pro hac vice is subject to the ethical standards and supervision of the court.” Id. Indeed, before a district court can admit an attorney pro hac vice, the court “must have some reasonable assurance that such attorney is familiar with the Federal Rules of Civil Procedure, the Local Rules for the [Eastern] District of New York, this Court’s Individual Rules, and the customs and practices of this Court.” Erbacci, Cerone, and Moriarty, Ltd. v. United States, 923 F.Supp. 482, 485-86 (S.D.N.Y.1996).

It follows from this that an attorney who is admitted pro hac vice must comport himself in the manner of attorneys who have standing admission to this Court. Having had Mr. King try this case before me previously, it is clear that Mr. King does not meet this standard. This [92]*92Court has had no attorney before it in any case who has demonstrated the defiance, lack of respect, and unawareness of local practice and the Federal Rules of Civil Procedure as Mr. King demonstrated during the trial of this case.

The record contains numerous examples but a few will make the point. First, Mr. King had difficulty with arriving on time for conferences or trial. That of course happens from time to time; when it does, attorneys apologize and the case goes on. Mr. King, however, refused to acknowledge his obligation to be on time:

THE COURT: Mr. King has entered the courtroom.
Mr. King, it’s 9:43, the jury has been waiting for you since 9:30. You heard me yesterday emphasize to them how it was important that they be prompt so that they not keep us all waiting and you have kept us all waiting.
Please be on notice that I will impose a substantial monetary fine if you are late particularly since you missed the pretrial conference for being late and then you then wrote a letter assuring me that you will not be late again so this is your final warning, sir.
MR. KING: Your Honor, I would like to make a record.
THE COURT: Go ahead.
MR. KING: I’ve only been practicing law for eight years now. I practiced in federal courts, state courts throughout this nation. I worked for a federal judge in—
THE COURT: Mr. King, please get to your point.
MR. KING: That is my point.
THE COURT: That has nothing to do with your lateness. Trial was called for 9:30 everyone made to here but you.
MR. KING: Your Honor, I can never assure anyone I won’t be late, okay.
THE COURT: That’s quite a remarkable statement.

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Related

In Re Michael Rappaport
558 F.2d 87 (Second Circuit, 1977)
Southerland Ex Rel. Southerland v. City of New York
681 F.3d 122 (Second Circuit, 2012)
Southerland v. City of New York
680 F.3d 127 (Second Circuit, 2012)
Erbacci, Cerone, and Moriarty, Ltd. v. United States
923 F. Supp. 482 (S.D. New York, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
998 F. Supp. 2d 89, 2014 U.S. Dist. LEXIS 23944, 2014 WL 704327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southerland-v-woo-nyed-2014.