Brown v. Philip Morris Inc.
| Decision Date | 10 November 2003 |
| Docket Number | No. CIV.A. 03-30110-MAP.,CIV.A. 03-30110-MAP. |
| Citation | 291 F.Supp.2d 3 |
| Parties | Charlene BROWN, individually and on behalf of the Estate of Doris Kutsmeda, Marie Serrazina, individually, and on behalf of all others similarly situated, Plaintiffs v. PHILIP MORRIS INCORPORATED, Liggett Group, individually and as successor to Liggett & Myers, Inc.; R.J. Reynolds Tobacco Company; Brown & Williamson Tobacco Corporation, individually and as successor by merger to the American Tobacco Company and its predecessors in interest; Lorillard Tobacco Company, individually and as successor to Lorillard, Inc.; British American Tobacco Company, L.T.D.; Stop & Shop; Does 1 through 500 inclusive; and Roe Corporations 1 through 500, inclusive, Defendants |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Thomas A. Kenefick, III, Law Office of Thomas A. Kenefick III, Springfield, MA, for Charlene Brown, Marie Serrazina, Plaintiffs.
Charles Lybarger, Las Vagas, NV, for Charlene Brown, Marie Serrazina, Plaintiffs.
Frank J. Bailey, Sherin and Lodgen, Boston, MA, for Stop & Shop Companies, Inc., Defendant.
Matthew C. Baltay, Foley Hoag LLP, Boston, MA, for Brown & Williamson Tobacco Corporation, Defendant.
Roberto M. Braceras, Goodwin Procter, LLP, Boston, MA, for Philip Morris Incorporated, Defendant.
Amy M. Crouch, Shook, Hardy & Bacon, Kansas City, MO, for Philip Morris Incorporated, Lorillard Tobacco Company, Defendants.
Anthony L. DeProspo, Jr., Sherin and Lodgen LLP, Boston, MA, for Stop & Shop Companies, Inc., Defendant.
Jerome R. Doak, Jones, Day, Dallas, TX, for R.J. Reynolds Tobacco Company, Defendant.
Scott E Erlich, Nutter, McClennen & Fish, LLP, Boston, MA, for Lorillard Tobacco Company, BP Gas Station, Defendants.
Jeffrey S. Follett, Foley Hoag LLP, Boston, MA, for Brown & Williamson Tobacco Corporation, Defendant.
David R. Geiger, Foley Hoag LLP, Boston, MA, for Brown & Williamson Tobacco Corporation, Defendant.
Harold K. Gordon, Jones Day, New York City, for R.J. Reynolds Tobacco Company, Defendant.
Patricia A. Hartnett, Comell & Gollub, Boston, MA, for Liggett Group, Defendant.
John H. Henn, Foley Hoag LLP, Boston, MA, for Brown & Williamson Tobacco Corporation, Defendant.
Erin K. Higgins, Conn, Kavanaugh, Rosenthal, Peisch & Ford, LLP, Boston, MA, for R.J. Reynolds Tobacco Company, Defendant.
James W. Matthews, Sherin and Lodgen LLP, Boston, MA, for Stop & Shop Companies, Inc., Defendant.
Andrew J. McElaney, Jr., Nutter, McClennen & Fish, LLP, Boston, MA, for Lorillard Tobacco Company, BP Gas Station, Defendants.
Kenneth J. Parsigian, Goodwin Procter, LLP, Boston, MA, for Philip Morris Incorporated, Defendant.
Thomas E. Peisch, Conn, Kavanaugh, Rosenthal, Peisch & Ford, LLP, Boston, MA, for R.J. Reynolds Tobacco Company, Defendant.
Michael P. Rosenstein, Kasowitz, Benson, Torres & Friedman LLP, New York City, for Liggett Group, Defendant.
Mark R. Seiden, Jones, Day, New York City, for R.J. Reynolds Tobacco Company, Defendant.
David H. Sempert, Cornell & Gollub, Boston, MA, for Liggett Group, Defendant.
John K. Sherk, Shook, Hardy & Bacon LLP, Kansas City, MO, for Philip Morris Incorporated, Lorillard Tobacco Company, Defendants.
Micki S. Singer, Sedgwick, Detert, Moran & Arnold LLP, San Francisco, CA, for Brown & Williamson Tobacco Corporation Defendant.
W. Bruce Wold, Sedgwick, Detert, Moran & Arnold LLP, San Francisco, CA, for Brown & Williamson Tobacco Corporation, Defendant.
William A. Yoder, Shook, Hardy & Bacon LLP, Kansas City, MO, for Philip Morris Incorporated, Lorillard Tobacco Company, Defendants.
Jeffrey Robert Yousey, Goodwin Procter, LLP, Boston, MA, for Philip Morris Incorporated, Defendant.
MEMORANDUM AND ORDER WITH REGARD TO THOMAS A. KENEFICK III'S MOTION TO WITHDRAW (Document No. 66)
Presently before the court is Thomas A. Kenefick III's motion for leave to withdraw his appearance as counsel to Plaintiffs in the above captioned matter. Charles Lybarger is also counsel of record for Plaintiffs, but only appears pro hac vice. Mr. Kenefick serves as local counsel. For the reasons explained below, Mr. Kenefick's motion will be denied.
Under the local rules of this district, an attorney may withdraw from a case without leave of court by serving notice on his client and the other parties if "(1) such notice is preceded or accompanied by notice of the appearance of other counsel; (2) there are no motions pending before the court; (3) no trial date has been set; and (4) no hearings or conferences are scheduled, and no reports, oral or written, are due." LR. 83.5.2(c). If these requirements are not met, an attorney may withdraw only with leave of the court. Id. That is the situation here, if for no other reason than Plaintiffs' pending motion to remand. (See Document No. 55.) Mr. Kenefick has in fact sought the court's leave.
In the usual course, this court would likely grant such a motion. See Hammond v. T.J. Litle and Co., Inc., 809 F.Supp. 156, 159 (D.Mass.1992) () (internal citations omitted). In this case, however, the court has concluded that Mr. Kenefick's withdrawal is not permitted by Local Rule 83.5.3(b) which governs the appearance of pro hac vice counsel. That rule provides as follows:
An attorney who is a member of the bar of any United States District Court or the bar of the highest court of any state may appear and practice in this court in a particular case by leave granted in the discretion of the court, provided he files a certificate that (1) he is a member of the bar in good standing in every jurisdiction where he has been admitted to practice; (2) there are no disciplinary proceedings pending against him as a member of the bar in any jurisdiction; and (3) he is familiar with the Local Rules of the United States District Court for the District of Massachusetts; and provided, further, his application for leave to practice in this court is on motion of a member of the bar of this court, who shall also file an appearance.
LR. 83.5.3(b). As is evident, the rule requires that an attorney may not appear pro hac vice without the simultaneous appearance of local counsel. Moreover, the rule implies, if not requires, that the appearance of local counsel be permanent (except, perhaps, when there is a second local attorney).
Here, it was Mr. Kenefick who, on May 27, 2003, moved to permit Mr. Lybarger to appear pro hac vice on behalf of Plaintiffs. (See Document No. 10.) Mr. Lybarger filed a corresponding affidavit. (See Document No. 11.) By proceeding in this manner, both Mr. Kenefick and Mr. Lybarger were complying with the provisions of Local Rule 83.5.3.
The purpose of the rule is self-evident, namely, to allow out-of-state counsel to appear only with the support and supervision of a local attorney. See Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 277, 105 S.Ct. 1272, 84 L.Ed.2d 205 (1985) (); Obert v. Republic Western Insurance Co., ...
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