Pease v. Burns
| Decision Date | 13 January 2010 |
| Docket Number | Civil Action No. 08-30222-MAP. |
| Citation | 679 F. Supp.2d 161 |
| Parties | Sheryl A. PEASE and Little Sprouts Day Care, Plaintiffs v. Karen BURNS, Erin Murphy Craft, Linda Lenahan, Eric Lieberman, Judy Pasko, Denise J. Karlin, Brian Letendre, Iris Crispo, Constantia T. Papanikolaou, John Daly, Ann Reale, John and Jane Doe A-Z, The Department of Early Education and Childcare, and the Commonwealth of Massachusetts, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Robert M. Fuster, Jr., Fuster Law Offices, P.C., Pittsfield, MA, for Plaintiffs.
William P. O'Neill, Office of the Attorney General, Springfield, MA, for Defendants.
MEMORANDUM AND ORDER WITH REGARD TO MOTION FOR ADMISSION PRO HAC VICE (Document No. 32)
Presently before the court is a motion for admission pro hac vice by Louis A. Piccone ("Piccone") for the purpose of representing Sheryl Pease and Little Sprouts Day Care ("Plaintiffs"). The motion, signed by Plaintiffs' attorney, Robert M. Fuster, Jr., has been filed pursuant to Rule 83.5.3(b) of the Local Rules of the United States District Court for the District of Massachusetts.
In full, Local Rule 83.5.3(b) 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. An attorney seeking admission under this subsection may not enter an appearance or sign any papers until his application has been granted, except that the attorney may sign a complaint or any paper necessary to prevent entry of default for failure to answer or otherwise plead, provided such complaint or other paper is accompanied by his application for admission in proper form.
Rule 83.5.3(b), Local Rules of the United States District Court for the District of Massachusetts.
Here, Piccone has filed a Certificate of Good Standing indicating that he is duly admitted to the bar of the Commonwealth of Pennsylvania and is in good standing there as of October 28, 2009. He has also declared on penalty of perjury that there are no pending disciplinary proceedings against him as a member of the bar in any jurisdiction, that he has "perused" the local rules of this court, and that he agrees to conduct himself in accord with those rules. Moreover, his application is on motion of a member of the bar of this court. Despite such compliance with the rule, the court, for the reasons which follow, will exercise the discretion accorded by the rule and deny the motion.
Piccone first had contact with this court in 2005 when, proceeding pro se and as guardian of his minor son, he brought a civil rights action against a local school district. See Piccone v. Central Berkshire Reg'l Sch. Dist., Civil Action No. 05-30239-KPN ("Central Berkshire"). The matter was soon resolved and, in the court's view, raises no issues with regard to the present motion.
Piccone next had contact with this court in both 2008 and in 2009 with regard to two matters concerning Lucy Babeu, Babeu v. Linker, Civil Action No. 08-30127-MAP ("Babeu I"), and Babeu v. Linker, Civil Action No. 09-30045-MAP ("Babeu II"). In Babeu I, Ms. Babeu alleged that social workers with the Massachusetts Department of Social Services ("DSS") removed her two children and placed them in foster care. The complaint was signed both by Ms. Babeu individually and Piccone "pending admission pro hac vice." Babeu I, Doc. No. 1 at *26.1 The action, however, did not survive very long. In response to a motion by the defendants, this court ordered Piccone to arrange for the filing of a formal motion for admission pro hac vice. "If counsel fails to file such a motion or if such a motion is disallowed for any reason," the court warned, Ms. Babeu "shall be required to proceed pro se." Id., Electronic Order, dated Oct. 21, 2008. A pro hac vice motion was never filed, but another attorney did appear for Ms. Babeu. That attorney, however, failed to oppose the defendants' subsequent motion to dismiss. As a result, on December 15, 2008, District Judge Michael A. Ponsor dismissed the matter on its merits and closed the case.
Three months later, on March 17, 2009, Ms. Babeu, again with Piccone's assistance, filed Babeu II. In a Report and Recommendation dated April 3, 2009, however, this court recommended that it be summarily dismissed. First, the court explained that there were only minor "odd" differences from Babeu I, e.g., it now appeared to include marginal editorial comments as well as Piccone's non-erased signature. (See n. 1, supra.) Second, the court noted that neither one of Ms. Babeu's complaints had included a Massachusetts Board of Bar Overseers ("BBO") registration number for Piccone. See Rule 5.1(a)(1) of the Local Rules of the United States District Court for the District of Massachusetts ("The board of bar overseers registration number of each attorney signing pleadings, motions, and other papers... shall be inscribed below the signature."). Nor was there any indication that Piccone had ever been admitted to practice in this district. See generally Rules 83.5.2 and 83.5.3 of the Local Rules of the United States District Court for the District of Massachusetts. Third, the court recommended summary dismissal because of the following: (1) res judicata precluded Ms. Babeu from attempting to relitigate an identical action previously dismissed; (2) even if the complaint could survive that hurdle, Ms. Babeu had again failed to state claims upon which relief could be granted given that the defendants' merits-based arguments in their earlier motion to dismiss were equally applicable; and (3) the court lacked subject matter jurisdiction over Ms. Babeu's claims for the very reasons the defendants asserted in the prior action, namely, they were immune from suit and/or the abstention doctrine continued to preclude federal judicial review. In addition, the court voiced its concerns that Piccone was attempting to play fast and loose with the district's rules governing appearances and practice by persons not members of the bar.
On April 24, 2009, Judge Ponsor adopted the recommendation and dismissed Babeu II. When doing so, Judge Ponsor also referred the matter to the BBO because of Piccone's "unorthodox efforts" with respect to representing Ms. Babeu. Babeu II, Doc. No. 6 at *2. As the court now understands, the referral was later forwarded by the BBO to the Disciplinary Board of the Supreme Court of Pennsylvania; during the course of Babeu II, Piccone had indicated that he was a member of the bar of that state.
Piccone's next contact with this court came in August of 2009 in Hohn v. Burke, Civil Action No. 09-30143-MAP ("Hohn"). There, Krista Lynn Hohn, ostensibly proceeding pro se, submitted for filing a complaint against two employees of DSS as well as the Clerk Magistrate of the Juvenile Court in Pittsfield. Together with her complaint—which indicated that it was "prepared with the aid of Louis A. Piccone, Esq.," who is "admitted in Pa and Patent Bar Only" and living in "Dalton, MA," id., Doc. No. 1—Ms. Hohn filed an application for leave to proceed in forma pauperis. This court granted the motion but, in doing so, placed Ms. Hohn on notice of its concerns: (1) that Piccone may well be practicing law despite the fact that he was not admitted to do so in this district or in the Commonwealth of Massachusetts; and (2) that she would likely be left to proceed pro se without Piccone's assistance.
The court also notified Ms. Hohn that its concerns about Piccone would be conveyed to the Disciplinary Board of the Supreme Court of Pennsylvania. The court explained that, although Piccone's involvement in her case had "somewhat different stripes" than the Babeau matters—since he had neither indicated an intent to proceed pro hac vice nor signed the pleadings —it appeared to be the "same zebra." Id., Doc. No. 4 at *3. "Put bluntly," the court stated, "by obviously aiding Ms. Hohn's case without admission in this jurisdiction, Piccone still seems to be playing fast and loose with this court's rules." Accordingly, the court directed the Clerk to forward a copy of its memorandum and order to the Disciplinary Board of the Supreme Court of Pennsylvania for its consideration and review. "Given that Piccone is evidently licensed in Pennsylvania," the court indicated, "that jurisdiction would appear to have the most appropriate power to impose sanctions deemed appropriate."
The court is aware of one other case in which Piccone is involved, this time as a plaintiff together with his wife Elena. See Piccone v. McClain, Civil Action No. 09-30146-MAP ("McClain"). That case makes civil rights claims against the Commissioner of the Massachusetts Department of Children and Families ("DCF"), the successor to DSS, as well as various DCF employees, individuals connected with the Town of Dalton, and the Massachusetts State Police. Piccone's status as a party in that matter appears appropriate and raises no concern with this court. As set forth below, however, the complaint does describe acts taken by Piccone in ways specifically related to the motion for admission pro hac vice at issue here.
It is apparent from the certificate from Pennsylvania that Piccone is presently in good standing with the bar of that state. That status, however, in no way precludes ...
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