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Harkey v. U.S. Bank, N.A.

United States District Court, D. Nevada

January 21, 2015

MICHAEL HARKEY, Plaintiff,
v.
U.S. BANK, N.A., et al., Defendants.

Verified Petitions to Practice Pro Hac Vice (ECF Nos. 64, 65, 127, 128, 129, 130, 137, 138)

Motion for Leave to File Surreply (ECF No.83)

Motions to Strike (ECF Nos. 117, 123)

ORDER

RICHARD F. BOULWARE, II, District Judge.

I. INTRODUCTION

This matter is before the Court on a series of motions that appear to relate to a dispute over a stipulation for extension of time that was filed and withdrawn in this case in July 2014. See ECF Nos. 56, 60. On August 1, 2014, counsel for Defendants Black Knight Financial Services, LLC ("BKFS") and Fidelity National Financial Inc. ("FNF") (collectively, "Petitioners") filed Verified Petitions for Permission to Practice Pro Hac Vice in this case. See Verified Petitions, ECF Nos. 64, 65. Plaintiff filed a response to both petitions, asking this Court to inquire as to whether Petitioners "are prepared to comply with the Rules of this Court and the Nevada Rules of Professional Conduct in these proceedings." Resp. Verified Petitions at 5, ECF No. 70. Plaintiff alleges that Petitioners filed a stipulation for extension of time and affixed Plaintiff's counsel's electronic signature to it without Plaintiff's counsel's consent. Petitioners dispute this claim and argue that Plaintiff's counsel gave his express consent and only attempted to claim that no such consent was given after the stipulation was filed.

This dispute has led to a cascade of filings as to whether Petitioners should be permitted to appear in this case and whether their filings should be stricken. In addition to opposing the eight pro hac vice petitions filed by Petitioners, Plaintiff has also filed a Motion to File Surreply (ECF No. 83) and a Motion to Strike (ECF No. 117, as amended by ECF No. 123) which seeks to strike all filings made by Defendants BKFS and FNF and requests an order to show cause why Petitioners should not be held in contempt, sanctioned and disciplined for violations of the Local Rules of this Court and of the Nevada Rules of Professional Conduct.

II. DISCUSSION

The Court has reviewed the parties' submissions relating to the incident which Plaintiff claims raises concerns as to Petitioners' ability to comply with the rules of this Court and with the rules of professional conduct. The Court finds that it need not make a factual determination as to whether Plaintiff's counsel consented to the stipulation because Petitioners quickly rectified the situation. The Court is satisfied that Petitioners are willing and able to uphold their obligation to comply with Court rules and standards of professional conduct. These conclusions inform the Court's rulings on the motions as set forth below.

A. Plaintiff's Motion for Leave to File Surreply

The Court denies Plaintiff's motion to file a surreply. Nothing in the Local Rules authorizes surreplies. See LR 7-2(a)-(c). Surreplies are highly disfavored and courts in this district routinely interpret Local Rule 7-2 to allow filing of surreplies only by leave of court and only to address new matters raised in a reply to which a party would otherwise be unable to respond. See, e.g., FNBN-RESCON I LLC v. Ritter, 2014 WL 979930 at *6 (D. Nev. Mar. 12, 2014); Lasko v. Am. Bd. of Surgery, 2014 WL 300930 at *1 (D. Nev. Jan. 27, 2014).

Here, Plaintiff seeks to file a surreply to respond to material contained within Petitioner's reply brief that is directed at past ethical violations and sanctions incurred by counsel for Plaintiff and his colleague. Petitioners' filings related to these violations and sanctions are irrelevant to the issue of whether Petitioners should be permitted to practice pro hac vice in this case. Thus, the Court declines to consider any materials pertaining to the past conduct of counsel for Plaintiff submitted by either party and will not permit a surreply directed at that past conduct.

Plaintiff's motion also requests an evidentiary hearing to prove that Petitioners misrepresented that Wendy Alison Nora, whom counsel for plaintiff states is working as a "research assistant, investigator and paralegal in the instant case, " was "vitriolic" during discussions with Petitioners and that she is acting as lead counsel in this case. Mot. Surreply at 4-5, ECF No. 83. District courts have discretion over whether to hold an evidentiary hearing, but they "should not do so if the certification, the pleadings, the affidavits, and any supporting documentary evidence do not reveal an issue of material fact." Kashin v. Kent, 457 F.3d 1033, 1043 (9th Cir. 2006) (citation omitted) (internal quotation marks omitted).

Plaintiff's request for an evidentiary hearing is denied. The Court does not deem the issues of whether Ms. Nora was in fact acting "vitriolic" or whether she is in fact acting as lead counsel to be material. These facts have no bearing on whether Petitioners should be admitted to practice in this case. As stated above, the Court has found that Petitioners have acted satisfactorily by quickly remedying any defects that may have existed in the stipulation ...


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