Case Information
*1 UN ITED STA TES D ISTRICT COU RT SOU TH ERN D ISTRICT O F FLORID A CA SE N O . I9-BO4ZB-CV -D IM ITRO U LEA SN ATTH EW M AN
JELEN A STO LFAT,
Plaintiff,
FILED BY D . C. JUN 1 j 2218 EQUIFAX INFORMATION SERVICES, LLC , et al. ANGELA E. NOBLE CLE'K U S OfST . CT. s . o. oF &à. -w . eB. Defendants.
ORDER DENYING PLAINTIFF'S M OTIO N TO DISOUALIFY IDE 201 AN D
O RD ER TO SH O W CA USE TO DEFEN SE C O U NSEL
THIS CAUSE is before the Court upon Plaintiff, Jelena Stolfat's (Ccplaintiff ') dtM otion to Disqualify Defendant gsicl Counsels (sic) and M otion to Revoke the Pro Hac Vice Admission of Defendant gsicl Counsel'' (ûtM otion'') (DE 201. This matter was referred to the undersigned by the H onorable W illiam P. D im itrouleas, United States D istrict Judge. See D E 21 . D efendant, Trans Union LLC'S (dkDefendanf'), has filed a Response to Plaintiff s M otion gDE 251. No timely reply has been filed. The Court has detennined that no hearing is necessary. Therefore, this m atter is now ripe for review .
1. Plaintifps M otion Plaintiff, w ho is representing herself pro se in this m atter, is seeking to klrevoke Pro Hac V ice and disqualify out-of-state counsel M ichael M erar'' and ûûdisqualify local counsel A lexandra L. Tifford, Esquire.'' (DE 20, p. 1). According to Plaintiff, M r. M erar contacted her by email on *2 A pril 29, 2019, M ay 1, 2019, M ay 6, 2019, M ay 8, 20l 9, and M ay 9, 2019, but local counsel, M s. Tifford, did not file a m otion to appearprtp hac vice on behalf of M r. M erar until late in the day on M ay 9, 2019. 1d. at pp. 2-6. Plaintiff asserts that M r. M erar represented D efendant before m oving îoïpro hac vice adm ission and im properly used ûûintim idation techniques'' w ith Plaintiff. Id at p. 5. Finally, Plaintiff accuses M s. Tifford of aiding M r. M erar in the unauthorized practice of law . 1d. at p. 6. Plaintiff requests that the Court disqualify both attom eys, revoke M r. M erar's pro hac vice adm ission in this D istrict, and refer the m atter to the Grievance Com m ittee of the Florida Bar. f#. at pp. 6-7.
II. D efendant's R esponse ln response, D efendant argues that it subm itted its m otion for M r. M erar to appearprö hac vice a mere nine days after Defendant filed its Answer and Defenses to the Complaint. (DE 25, p. 1J. Defendant contends that the Court lacksjurisdiction over grievances regarding the unauthorized practice of law and also lacks jurisdiction to refer this matter to the Florida Bar. 1d. at pp. 2-3. N ext, D efendant argues that M r. M erar's conduct in this case at a11 tim es com plied w ith Rule 4-
of the Rules Regulating the Florida Bar. 1d. at pp. 3-4. D efendant also asserts that disqualification is drastic and inappropriate given the facts in this case. 1d. at pp. 4-5. A ccording to D efendant, there is also no basis to revoke M r. M erar'sprtp hac vice adm ission when M r. M erar has not violated any Rule of Professional Conduct or Local Rule. 1d. at pp. 6-7. Finally, D efendant m aintains that Plaintiff's M otion is procedurally deficient for m ultiple reasons. 1d. at pp. 7-8.
Attached to Defendant's Response are the Declaration of Alexandra L. Tifford (DE 25-11 and the Declaration of M ichael M erar gDE 25-21.
111. Plaintifrs M otion is W ithout M erit The Court has carefully reviewed the M otion, R esponse, various attachm ents, and the *3 entire docket in this case. The relevant facts are as follow s.
A lexandra Tifford, Esq., is an attorney at the 1aw 51711 of Fow ler W hite Burnet't in the M iami oftice. (DE 25-1, ! 2). She is licensed to practice law in the State of Florida, and she is admitted to practice in the Southern District of Florida. 1d. at !3. M ichael M erar, Esq. is an attomey at the law 51114 of Quilling, Selander, Lownds, W inslett & M oser, P.C., in the Plano, Texas office. (DE 25-2, ! 21. He is licensed to practice law in the State of Texas and the State of Georgia, and he is adm itted to practice in the United States District Courts for the N orthern, Southem Eastern, and W estern D istricts of Texas, as w ell as the N orthern and M iddle D istricts of G eorgia. 1d. at ! 3.
M r. M erar first contacted the pro se Plaintiff via em ail on A pril 29, 2019, and M s. Tifford submitted the motion foçpro hac vice admission on May 9, 2019. (DE 25-2, !! 5-6,. DE 25-1, ! 7', DE 14J. Before M r. M erar was admitted to practice in this Districtprtp hac vice on May 10, 2019, M s. Tifford iûdiligently review ed, signed, and tiled all pleadings entered by Trans Union in this case.'' (DE 25-1 at ! 7; DE 25-1 at ! 6; 151. Defendant's Answer and Affirmative Defenses (DE 121, which was filed before Mr. M erar was admittedpr/ hac vice, is solely signed by Defendant's local counsel, A lexandra Tifford and Christopher K night.
Based on these facts, there is no evidence of unauthorized practice of law and there are no grounds to disqualify Defendant's counsel or revoke M r. M erar's pro hac vice adm ission in this D istrict. Plaintiff's M otion is baseless. N either M r. M erar nor M s. Tifford violated the Southern D istrict of Florida Local Rules or the Rules Regulating the Florida Bar. There w as sim ply a short lag of approxim ately l 1 days betw een M r. M erar contacting Plaintiff and being adm itted pro hac vice, during which period of tim e D efendant's local counsel, who is adm itted in this District, filed an A nswer and A ftirm ative D efenses. This does not am ount to a rule violation of the unauthorized *4 practice of law . l Further , no ktintim idation techniques'' w ere utilized by defense counsel as claim ed by Plaintiff. ln sum , Plaintiff's M otion is due to be denied because it is not supported by the law or the facts.
IV . D efendant's R esponse to the M otion Is. in Part. Frivolous W hile Plaintiff's M otion is w ithout m erit and is due to be denied, the Court tinds it necessary to specitically com m ent on portions of D efendant's Response as w ell. The Court agrees w ith D efendant that disqualification and revocation of pro hac vice adm ission are im proper here based upon the argum ent and facts presented by Plaintiff', how ever, som e of the argum ents m ade by D efendant's counsel in D efendant's Response are frankly startling, and are so frivolous and m isleading that the Court w ill take the tim e to address them here.
First, Defendant argues that this Court Sélacks jurisdiction to hear matters regarding the unauthorized practice of law.'' (DE 25, p. 21. This is a wholly frivolous argument. This case is in federal court. Under Local Rule 1 1 .1(c),
The standards of professional conduct of m em bers of the Bar of this Court shall include the current Rules Regulating the Florida Bar. For a violation of any of these canons in connection w ith any m atter pending before this Court, an attorney m ay be subjected to appropriate disciplinary action.
S.D. Fla. L.R. 1 1. 1(c). ln other words, the Florida Bar Rules are incomorated into the Local Rules of this Court. A ny unlicensed practice of law before this Court can be dealt with by this Court by w ay of contem pt, sanctions, or referral to the Florida Bar ancl/or to this D istrict's Com m ittee on A ttorney Adm issions, Peer Review and Attom ey Grievance pursuant to R ule 6 of the Southern 1 In fact , in m ore egregious circumstances, a coul't in this District retroactively granted pro hac vice adm ission aher an attorney who was not admitled to this District filed an Am ended Com plaint. Findling v. Bisaria, No. 12-CV- 80l l S-DMM , 2012 W L 3835079, at *3 (S.D. Fla. Sept. 4, 2012). The court noted that 1ça district court may use its discretion in determ ining whether to allow a non-lawyer to appear in court.'' 1d.
D istrid of Florida Rules G overning the A dm ission, Practice, Peer Review , and Discipline of A ttorneys. H ad D efendant's counsel taken the tim e to read the Court's Local R ules, they w ould not have m ade this frivolous argum ent.
Second, D efendant's counsel im properly relies on tw o federal cases in support of its argument that this Court lacks jurisdiction to hear matters regarding the unauthorized practice of law: In re L osee, 195 B.R. 785 (M .D. Fla. Bankr. 1996), and Gonczi v. Countryfvide Home L oans, lnc., No. 06-61597-C1V-A1tonag=TuOoff, 2007 W L 9700997 (S.D. Fla. Feb. 2, 2007).2 The Gonczi case is not at a11 on point. W hile the court did state in Gonczi that Stonly the state bar has the authorization to determ ine w hether conduct constitutes unauthorized practice of law '', this statem ent w as in the context of a defendant's m otion to dism iss a com plaint by a private litigant explicitly alleging the unauthorized practice of 1aw as a cause of action against D efendant. 2007 W L 97000997, at * 1 . Defendant's citation to case law about the legal validity of a civil claim for the unauthorized practice of 1aw is com pletely irrelevant to the case at hand. N ext, the f osee court did state that w hether or not an attorney Cûis guilty of unauthorized practice of 1aw is a question w hich m ust be resolved by the Suprem e Court of this State upon the recom m endation of the Florida Bar and not by this Court.'' 195 B .R . at 786. How ever, in the very next sentence, the court stated that tûltlhis conclusion should not be interpreted to mean that this Court lacks the power to refer the m atter to the Florida Bar for investigation if it appears that a person m ight have engaged in the unauthorized practice of law before this Court.'' 1d. The f osee case, therefore, actually contradicts 2 Defendant also cites Florida state cases w hich are completely irrelevant as they involve whether entities and individuals other than the Florida Bar can çcprosecute'' claims for the unauthorized practice of law and w hether the içFlorida Supreme Court's jurisdiction to prevent the unauthorized practice was ûexclusive' vis-à-vis other state courts.'' State v. Palmer, 79 1 So. 2d 1 l 8 1 , 1 1 85 (Fla. Dist. Ct. App. 200 l ). Nowhere do these cases state that a federal court has no jurisdiction to determine whether an at-torney has engaged in the unauthorized practice of 1aw before a federal court.
Defendant's argument made later in its Response gDE 25, p. 3) that this Court lacks jurisdiction to refer this m atter to the Florida B ar even if sufticient grounds exist.
Further, and quite im portant to this Court, D efendant failed to disclose that several federal courts, including courts in this District, have, in fact, m ade findings regarding an attonw y's unauthorized practice of law, contrary to Defendant's citation to f osee. See Principal L (/e Ins. Co. v. Meyer, No. 09-20244-C1V, 2010 W L 744578 (S.D. Fla. M ar. 2, 2010) (requiring an attorney to show cause w hy the coul't should not refer the attorney's unauthorized practice of law to the State Attorney's Office or take further action); Shell v. U S. Dep't of Hous. dr Urban Dev. , No. 08- 60589-C1V, 2008 W L 2637431 (S.D. Fla. July 3, 2008) (noting in a footnote that the court can conduct a hearing on a m otion for an order to show cause w hy an attorney should not be sanctioned for the unlicensed practice of lawl; Adams v. Bellsouth Telecommuncations, Inc., No. 96-2473- CIV, 2001 W L 34032759, at *2 (S.D. Fla. Jan. 29, 2001), dismissed sub nom. Adams v. Bellsouth Telecommunications, 45 F. App'x 876 (1 lth Cir. 2002) (noting that the United States M agistrate Judge had held a hearing and had found that an attorney had violated the Florida Bar Rules prohibiting the unauthorized practice of law , but im posing no sanctions because none w ere recommendedl; Benjamin v. Airborne Sec. dr Prot. Servs., lnc. , No.12-61624-C1V, 2012 NUL 12886185 (S.D. Fla. Dec. l 8, 2012) (noting that an attorney's representation of a corporate party bordered on the unlicensed practice of lawl; In re Calzadilla, 1 5 1 B.R. 622 tBallkr. S.D. Fla. 1 993) (enjoining two attorneys and their law t114.1,1 from engaging in the unauthorized practice of law); In re Bachmann, 1 13 B.R. 769 tBallkr. S.D. Fla. 1990) (contemplating holding an attorney in contempt, but instead permanently enjoining and restraining the attorney from engaging in the unauthorized practice of law); In re Bagdade, 334 F.3d 568 (7th Cir. 2003) (holding attorney in civil contem pt for engaging in the unauthorized practice of law , m aking false representations to
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the court, and testifying falsely under oath). Therefore, Defendant's Response cites a case, Gonczi, w hich had nothing to do w ith the facts of this case and then cites a bankruptcy case, f osee, w ithout advising the Court of additional authority which did not support D efendant's position, and then taking a position, addressed further below, directly rejected by f osee.
ln this regard, Defendant ftm her im properly argues in its Response to the M otion that this Court lacks jurisdiction to refer this matter to The Florida Bar tûeven if sufticient grounds existed.'' (DE 25, p. 31. This argument is completely frivolous.Courts in this District regularly refer attorney's misconduct to the Florida Bar. See, e.g., Elam v. Bank ofNew York Mellon, 589 B.R. 43l , 438 (S.D. Fla. 2018)., Abrams-lackvon v. Avossa, 282 F. Supp. 3d 1268, 1271 (S.D. Fla. 2017)', Parish-carter v. Avossa, No. 9:16-CV-81623, 2017 W L 4355835, at *4 (S.D. Fla. Oct. 2, 2017), affi 760 F. App'x 865 (1 1th Cir. 2019)., Jallali v. USA Funds, No. 1 1-625l0-C1V, 2013 W L 12080743, at * 1 (S.D. Fla. Oct. 30, 2013)*, Nardolilli v. Bank ofvqm. Corp., No. 12-81312- CIV, 2013 W L 12154544, at * 1 (S.D. Fla. Sept. 24, 2013)*, United States v. Coulton, No. 07-CR- 60172-LENARD, 2013 W L 12086298, at * 18 (S.D. Fla. Feb. 2013), report and recommendation adopte4 No. 07-60172-CR, 2013 W L 12086299 (S.D. Fla. M ay 10, 2013), affd andremande4 594 F. App'x 563 (1 1th Cir. 2014). Just as any client or attorney can file a grievance against an atlorney licensed by the Florida Bar, a federal judge, whether a District Judge or a M agistrate Judge, also can refer a m atter to the Florida Bar. M oreover, this Coul't can also refer an attorney to its own Com m ittee on Attom ey A dm issions, Peer Review and Attorney Grievance pursuant to Rule 6 of the Southern D istrict of Florida Rules Governing the A dm ission, Practice, Peer Review, and D iscipline of Attorneys. The C ourt is sim ply confounded as to why defense counsel chose to m ake these argum ents to this C ourt.
Due to the improper arguments contained in Defendant's Response gDE 25, pp. 2-31, the *8 Court has had to expend additional scarcejudicial resources in resolving this matter. The Response is electronically signed by A lexandra L. Tifford, Esq., on her ow n behalf and on behalf of Christopher E. K night, Esq., and M ichael M eran, Esq. A ccordingly, the Court directs those three counsel to show cause, on or before June 24, 2019, w hy such frivolous, im proper, and m isleading argum ent and citation to case 1aw w ere presented to this Court, as well as w hy defense counsel failed to advise the Court of case 1aw w hich directly contradicts D efendant's untenable argum ent. Further, defense counsel shall address w hy sanctions should not be im posed against all such counsel or any of them in light of the argum ents m ade by defense counsel at D E 25, pp. 2-3. U pon receipt of Defendant's counsels' R esponse, the Court w ill determ ine what sanctions, if any, should be im posed against any defense counsel in this case.
Upon careful review of the m otions and the entire docket in this case, it is hereby O RD ER ED as follow s:
Plaintiff's CsM otion to Disqualify Defendant (sic) Counsels (sicl and M otion to Revoke the Pro Hac Vice Admission of Defendant (sicl Counsel'' (CcMotion'') (DE 20j is DENIED. Mr. M erar and M s. Tifford, as well as their 1aw finns, are perm itted to continue to represent D efendant in this m atter at this tim e. Defendant's counsel, M s. Tifford, M r. Knight, and M r. M eran, shall show cause on or before June 24, 2019, why such argum ents were m ade as discussed above and why sanctions should not be im posed upon all or any such counsel due to the im proper, inaccurate, and m isleading argum ents contained in D efendant's Response gDE 25, pp. 2-31.
The Clerk of Court is D IRECTED to m ail a copy of this Order to Jelena Stolfat, A pt. 103, 265 Courtney Lakes Circle, W est Palm Beach, Florida 33401.
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D O N E and O RD ER ED in Cham bers at W est Palm Beach, Palm Beach Countys Florida, g
this 14 fay ot-lune , 2019.
1?a&. .
W ILLIAM M TTH EW M A N UN ITED STATES M A G ISTR ATE JUD G E 9