Erbacci, Cerone, and Moriarty, Ltd. v. US, 96 Civ. 1664 (DNE).

• Decision Date: 10 April 1996
• Docket Number: No. 96 Civ. 1664 (DNE).,96 Civ. 1664 (DNE).
• Citation: 923 F. Supp. 482
• Parties: ERBACCI, CERONE, AND MORIARTY, LTD., as successor to, Erbacci, Syracuse & Cerone Ltd., Anthony G. Erbacci, and Jack P. Cerone, individually and d/b/a Marble Insurance Agency, Plaintiffs, v. UNITED STATES of America; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO; Charles M. Carberrry, as Investigations Officer; Frederick B. Lacey, as Independent Administrator; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Local 738; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Local 726; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Local 727, Defendants.
• Court: U.S. District Court — Southern District of New York

923 F. Supp. 482

ERBACCI, CERONE, AND MORIARTY, LTD., as successor to, Erbacci, Syracuse & Cerone Ltd., Anthony G. Erbacci, and Jack P. Cerone, individually and d/b/a Marble Insurance Agency, Plaintiffs, v. UNITED STATES of America; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO; Charles M. Carberrry, as Investigations Officer; Frederick B. Lacey, as Independent Administrator; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Local 738; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Local 726; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Local 727, Defendants.

No. 96 Civ. 1664 (DNE).

United States District Court, S.D. New York.

April 10, 1996.

Aldo E. Botti, Peter M. DeLongis, Ronald D. Menna, Oakbrook, IL, Martin M. Schmuckler, New York City, for plaintiffs.

MEMORANDUM AND ORDER

EDELSTEIN, District Judge:

Plaintiffs move this Court to extend plaintiffs' time to respond to defendants' respective motions to dismiss, brought pursuant to Federal Rule of Civil Procedure ("Rule") 12(b). Because this motion is not properly before this Court, the motion is denied.

Plaintiffs' attorneys, Aldo E. Botti ("Botti"), Peter M. DeLongis ("DeLongis"), and Ronald D. Menna ("Menna") (collectively "plaintiffs' attorneys" or "plaintiffs' counsel") have also applied to this Court to be admitted pro hac vice. Because plaintiffs' attorneys have demonstrated a serious lack of understanding regarding appropriate practice before this Court, plaintiffs' attorneys' application is denied with prejudice.

BACKGROUND

Plaintiffs originally brought the instant case in the United States District Court for the Northern District of Illinois. Thereafter, the United States of America ("the Government") moved this Court to enjoin plaintiffs from pursuing this case in any court or forum other than this Court.¹ In response to the Government's motion, plaintiffs asserted that this Court should not issue an injunction. Moreover, plaintiffs' attorneys applied to this Court for admission pro hac vice. Plaintiffs' local counsel Martin M. Schmuckler — who is admitted to practice before this Court — signed both plaintiffs' papers in response to the Government's motion for an injunction and the motion to admit plaintiffs' attorneys pro hac vice. In an Opinion and Order, this Court enjoined plaintiffs from pursuing the instant litigation in any court or forum other than this Court. See United States v. International Bhd. of Teamsters, et al., 911 F.Supp. 743 (S.D.N.Y.1996).

In the same Opinion and Order, this Court also denied plaintiffs' counsels' application for admission pro hac vice without prejudice. This Court stated that "before plaintiffs' attorneys may appear before this Court, this Court must have some reasonable assurance that these attorneys are familiar with the Local Rules and this Court's Individual Rules." Id. at 754. This Court found that "far from demonstrating such familiarity, however, plaintiffs' attorneys have submitted papers that violate these rules." Id. Citing several violations of the Local Rules and this Court's Individual Rules in plaintiffs' papers, this Court expressed "grave doubts regarding the truthfulness of the statement that each of plaintiffs' attorneys made in his affidavit: `I have read and am familiar with ... Rules of the United States District sic for the Southern and Eastern Districts of New York.'" Id. Moreover, this Court was "particularly troubled by the fact that plaintiffs' attorneys respectively made this representation to this Court `on oath' in sworn affidavits." Id.

After this Court enjoined plaintiffs from pursuing the instant litigation in any court or forum other than this Court, the instant case was transferred to this Court from the United States District Court for the Northern District of Illinois. After this transfer, defendants respectively filed motions to dismiss. Defendants, however, set different return dates for their respective motions to dismiss. These dates range from April 15, 1996, to May 1, 1996.

In the instant motion for an extension of time, brought pursuant to Rule 6(b), plaintiffs argue that this Court should extend plaintiffs' time to answer all of these motions to dismiss until May 8, 1996. (Plaintiffs' FRCP 6(b) Memorandum of Law in Support of Their Motion To Consolidate Briefing Schedules and Extend Time at 4.) Plaintiffs assert that, in order to promote judicial economy, this Court should set a unified date for plaintiffs' response to all of defendants' respective motions to dismiss. Id. at 4. Plaintiffs claim that many of the arguments that defendants raise in their respective motions are identical, and therefore, by filing one brief in response to all of these motions, plaintiffs could avoid the burden of preparing multiple submissions, and the Court could avoid the burden of reviewing such submissions.

DISCUSSION

In relevant part, Rule 6(b) states: "When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged...." The decision to grant or deny a Rule 6(b) motion is left to the discretion of the district court. See F.R.C.P. 6(b).

In the instant case, because plaintiffs' counsel has not been admitted to practice before this Court, the instant motion is not properly before this Court, and therefore, should be denied. In relevant part, General Rule 2 of the Local Rules for the Southern District of New York states "only an attorney of this Court may enter appearances for parties." The papers in support of the instant Rule 6(b) motion were signed by Botti, who is not admitted to practice before this Court. Moreover, although plaintiffs were represented by local counsel when they submitted papers in opposition to the Government's motion for an injunction, no local counsel signed any of the papers in support of plaintiffs' Rule 6(b) motion. Because Botti violated the Local Rules by bringing a motion despite the fact that he is not admitted to practice before this Court, this Court holds that plaintiffs' Rule 6(b) motion is denied.

By submitting motion papers to this Court, Botti may have violated New York State's prohibition against the unauthorized practice of law. Under New York law, it is "unlawful for any natural person to practice or appear as an attorney-at-law or as an attorney and counselor-at-law for a person other than himself in a court ... without having first been duly and regularly licensed and admitted to practice law in the courts...." N.Y.Judiciary Law § 478 (McKinney 1996). This law prohibits the unauthorized practice of law in both New York State courts and federal courts in this state. Spanos v. Skouras Theatres Corp., 364 F.2d 161, 165 (2d Cir.1965) ("unlawful practice includes counseling as well as court appearances.... and it extends to advice involving federal law as well as New York law....") (citations omitted), cert. denied, 385 U.S. 987, 87 S.Ct. 597, 17 L.Ed.2d 448 (1966); In re Roel, 3 N.Y.2d 224, 165 N.Y.S.2d 31, 35, 144 N.E.2d 24, 27 (1957) ("Thus persons or corporations engaging in the practice of Federal law have been found violating the statute that prohibits the unauthorized practice of law.") (citations omitted); see also In re Peterson, 163 B.R. 665, 673 (Bankr.1994) ("The regulation of the right to practice law generally, unless otherwise prescribed by Congress, is traditionally left to the states.") (citations omitted). Moreover, in New York, the term "practice of law" includes "the preparation of legal instruments of all kinds, and in general all advice to clients and all action taken for them in matters connected with the law." In re Schwerzmann, 408 N.Y.S.2d 187, 189 (App. Div.1978) (internal quotations omitted); see also Spanos, 364 F.2d at 165.

In the instant case, Botti's act of making a motion before this Court certainly constitutes "the practice of law." Because there is nothing in the record that indicates that Botti — who is an attorney in the State of Illinois — has been admitted to practice in New York State, there is a substantial possibility that Botti has violated New York's prohibition against the unauthorized practice of law. Unlike Botti's violation of the Local Rules for the Southern District of New York, a violation of New York State's prohibition against the unauthorized practice of law is a crime. See N.Y.Judiciary Law § 485 (McKinney 1983) (violation of N.Y.Judiciary Law § 478 is a misdemeanor).

Although an attorney who practices in the United States District Court for the Southern District of New York after being admitted to practice pro hac vice does not violate New York's prohibition against the unauthorized practice of law, Spanos, 364 F.2d at 167, Botti has not been admitted to practice before this Court pro hac vice. In fact, this Court previously denied an application to admit Botti pro hac vice. United States v. International Bhd. of Teamsters, et al., 911 F.Supp. at 754.

Turning to Plaintiffs' counsel's current application to be admitted pro hac vice, this Court finds that the application suffers from defects similar to those in plaintiffs' Rule 6(b) motion. The decision to admit an attorney to practice pro hac vice rests with the discretion of the district court. See Spanos, 364 F.2d at 167. As discussed previously, before this Court will admit an attorney to practice pro hac vice, this Court must have some reasonable assurance that such attorney is familiar with the Federal Rules of Civil Procedure, the Local Rules for the Southern District of New York, this Court's Individual Rules, and the customs and practices of this Court. In light of the...