Cole v. U.S. Dist. Court for Dist. of Idaho

• Decision Date: 04 May 2004
• Docket Number: No. 03-73027.,03-73027.
• Citation: 366 F.3d 813
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Patricia A. COLE; Cathy Leal; Becki Trueblood, Petitioners, v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO, Respondent, TCI Media Services, Great Northwest Region, an entity of unknown type; TCI Media Services, Boise, an entity of unknown type; United Cable Television, a Delaware corporation; TCI Communications, Inc., a Delaware corporation; Tele-Communications Inc., Corp., a Delaware corporation; Bruce Wetten, an individual; Edward Moore, an individual, Real Parties in Interest.

Page 813

366 F.3d 813

Patricia A. COLE; Cathy Leal; Becki Trueblood, Petitioners, v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO, Respondent TCI Media Services, Great Northwest Region, an entity of unknown type; TCI Media Services, Boise, an entity of unknown type; United Cable Television, a Delaware corporation; TCI Communications, Inc., a Delaware corporation; Tele-Communications Inc., Corp., a Delaware corporation; Bruce Wetten, an individual; Edward Moore, an individual, Real Parties in Interest.

No. 03-73027.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 9, 2004.

Decided May 4, 2004.

COPYRIGHT MATERIAL OMITTED

Marilynn J. Winters, Simoncini & Associates, San Jose, CA, for the petitioners.

Gregory C. Tollefson, Stoel Rives LLP, Boise, ID, for the real parties in interest.

Petition for Writ of Mandamus to the United States District Court for the District of Idaho; Larry M. Boyle, Magistrate Judge, Presiding. D.C. No. CV-98-00342-LMB.

Before: D.W. NELSON, FISHER, and GOULD, Circuit Judges.

GOULD, Circuit Judge.

We consider a petition for a writ of mandamus arising from a magistrate judge's sanction of disqualification imposed on petitioners' counsel by revocation of counsel's pro hac vice status. Petitioners demonstrate that the magistrate judge clearly erred in imposing this sanction without giving petitioners' counsel notice and an opportunity to be heard on the specific grounds for disqualification and revocation of counsel's pro hac vice status. But because mandamus is an extraordinary remedy and petitioners did not take advantage of an available remedy by seeking review of the magistrate judge's decision before the district court, we deny the petition.

I

The request for mandamus relief follows an order disqualifying petitioners' lead counsel, Kenneth D. Simoncini, in a case scheduled for trial. The disqualification order resolved a motion brought by the defendants (captioned here as "Real Parties in Interest") to disqualify Simoncini on grounds not relevant to this appeal.¹

On May 2, 2003, after a hearing on the motion to disqualify, Magistrate Judge Boyle ordered the plaintiffs and Simoncini to submit affidavits for in camera review. The purpose of the ordered affidavits was to provide the magistrate judge with the necessary factual basis on which to rule on the disqualification motion.

Though the petitioners submitted the required affidavits on May 20, 2003, the cover letter to their submission informed the magistrate judge that Simoncini respectfully declined to submit an affidavit. On June 4, 2003, the magistrate judge ordered the three plaintiffs and counsel to state under oath the date or dates the "Conflict of Interest and Client Consent to Representation Waiver of Conflict" forms were executed.

On July 18, 2003, the magistrate judge issued the memorandum decision and order that prompted petitioners to file the mandamus petition now before us. In that decision, the magistrate judge rejected every ground advanced by the defendants to disqualify Simoncini. However, the magistrate judge decided sua sponte to sanction Simoncini because he had failed to provide the affidavit that he was ordered, but "declined," to submit. Citing District of Idaho Local Rule 83.5(b), governing discipline, and 18 U.S.C. § 401(3), governing contempt, the court expressed concern that Simoncini might refuse future orders, stated that Simoncini's pro hac vice status was a "conditional admission," and decided that it was appropriate to disqualify Simoncini and revoke his pro hac vice admission, in light of counsel's knowing disregard of the court's prior order.² The magistrate judge then so ordered.

Petitioners, who had formerly been represented by Simoncini, did not move for the magistrate judge to reconsider his order. Petitioners did not file a motion in the district court seeking reconsideration of the magistrate judge's order by the district court, which was a statutorily available remedy under 28 U.S.C. § 636(b)(1)(A). Instead, the petitioners bypassed reconsideration by the district court and immediately filed in our court the petition for a writ of mandamus. We have jurisdiction over this original action seeking a writ of mandamus pursuant to the All Writs Act, 28 U.S.C. § 1651, and we deny the petition.

II

The rule is that a writ of mandamus may be used to review the disqualification of counsel. See Christensen v. United States Dist. Court, 844 F.2d 694, 697 & n. 5 (9th Cir.1988). The reason is because the harm of such disqualification cannot be corrected with an ordinary appeal. Id. Whether a writ of mandamus should be granted is determined case-by-case, weighing the factors outlined in Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir.1977).³ These are whether (1) the party seeking the writ has no other means, such as a direct appeal, of attaining the desired relief, (2) the petitioner will be damaged in a way not correctable on appeal, (3) the district court's order is clearly erroneous as a matter of law, (4) the order is an oft-repeated error, or manifests a persistent disregard of the federal rules, and (5) the order raises new and important problems, or issues of law of first impression. Id. at 654-55. The Bauman factors should not be mechanically applied. See Admiral Ins. Co. v. United States Dist. Court, 881 F.2d 1486, 1491 (9th Cir.1989). Evidence showing that all the Bauman factors are affirmatively presented by a case does not necessarily mandate the issuance of a writ, nor does a showing of less than all, indeed of only one, necessarily mandate denial; instead, the decision whether to issue the writ is within the discretion of the court. See Kerr v. United States Dist. Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976).

A

The first Bauman factor highlights the need for mandamus to be used only when no other realistic alternative is (or was) available to a petitioner. See, e.g., Varsic v. United States Dist. Court, 607 F.2d 245, 251 (9th Cir.1979). This factor is affirmatively presented in the context of a disqualification of counsel when the petition arises from the action of a district court. See Christensen, 844 F.2d at 697 (noting that an order disqualifying counsel is not a collateral order subject to immediate attack and that the petitioner can never obtain the relief sought, i.e., maintaining the disqualified counsel for pending litigation, through a direct appeal). Parties normally have the right to counsel of their choice, so long as the counsel satisfy required bar admissions, and it is no small thing to disqualify a counsel before trial. Absent mandamus relief, a counsel's wrongful disqualification, which cannot be immediately appealed, can cause great harm to a litigant. This harm cannot be corrected by the ordinary appellate process because that occurs after the trial has been held, when it is too late to replace the counsel. This is why the rule of Christensen, permitting mandamus relief after a disqualification of counsel by a district court, makes good sense.

Unlike Christensen, however, this case concerns a disqualification order made by a magistrate judge acting on authority delegated by, and subject to the supervision of, the district court. The defendants argue that the petitioners could have appealed the magistrate judge's order to the district court.⁴

Defendants' argument has force. It is uncontested that petitioners could have, but did not, move for reconsideration of the magistrate judge's ruling with the district court pursuant to 28 U.S.C. § 636(b)(1)(A).⁵ The petitioners cannot now seek reconsideration of the magistrate judge's order pursuant to this statute. See Fed.R.Civ.P. 72(a). The Bauman factor assessing whether a party has "no other means" to gain the desired relief is not presented here.⁶ Petitioners had an absolute right to seek district court reconsideration of the magistrate judge's decision. Were we to ignore this simple and direct route open to petitioners for review of the disqualification order, we would be improperly placing our court, rather than the district court, in the role of supervising the magistrate judge's decisions. Petitioners had a ready remedy with the district court, but did not pursue it.⁷

Petitioners' failure to submit this disqualification issue to the district court, where review was automatic, gravely weakens the petitioners' case for the writ of mandamus. The need to show the lack of an available remedy absent a writ of mandamus goes to the heart of this extraordinary remedy which should be sparingly employed. See Kerr, 426 U.S. at 403, 96 S.Ct. 2119 (holding that "as a means of implementing the rule that the writ will issue only in extraordinary circumstances," the party seeking the writ must "have no other adequate means to attain the relief he desires"). In the ordinary course, the district courts, and not the courts of appeals, are to be called on, in the first instance, to correct any clear error in the decision of a magistrate judge on non-dispositive matters, for this is the role that Congress has created for district courts.⁸

A consideration of extra-circuit case law reinforces our conclusion. In Califano v. Moynahan, 596 F.2d 1320 (6th Cir.1979), the Sixth Circuit addressed a petition for a writ of mandamus to direct the district court to rescind a permanent order directing social security disability appeals to a magistrate judge. Califano required that "the party seeking issuance of the writ have no other adequate means to attain the relief he desires...." Id. at 1321 (quoting Kerr, 426 U.S. at 403, 96 S.Ct. 2119). The Sixth Circuit noted that, pursuant to 28 U.S.C. § 636(b)(1)(A), the petitioner could have, but did not, move for reconsideration of the decision of the magistrate judge. Id. It held that the argument advanced on appeal via the mandamus petition "was the type of argument which ought to have been made to the district court.... We...