United States District Court, D. Nevada
J. KOPPE United States Magistrate Judge
before the Court are a variety of motions regarding a dispute
as to the representation of various Plaintiffs in this case.
The Law Offices of Steven J. Parsons (“Parsons”)
filed a motion to substitute attorneys on behalf of certain
named plaintiffs and certain opt-in plaintiffs. Docket No.
160. Current counsel for those plaintiffs, the Law Offices of
Daniel Marks (“Marks & Levine”), filed a response
in partial opposition. Docket No. 162. Parsons filed a reply.
Docket No. 164.
Parsons filed a motion to submit additional evidence. Docket
No. 165. Marks & Levine filed a response in opposition.
Docket No. 171.
Marks & Levine filed a motion to strike. Docket No. 169.
Parsons filed a response in opposition. Docket No. 173. Marks
& Levine filed a reply. Docket No. 176.
Marks & Levine filed a motion for sanctions. Docket No. 170.
Parsons filed a response in opposition. Docket No. 174. Marks
& Levine filed a reply. Docket No. 177.
Court finds the motions properly resolved without a hearing.
See Local Rule 78-1.
Motion to Substitute-Named Plaintiffs
wishes to be substituted as counsel for nine of the named
plaintiffs. Docket No. 160 at 5. Through briefing the motion
to substitute, Parsons and Marks & Levine appear to be in
agreement that such substitution is permissible with respect
to these named plaintiffs in their individual capacities.
See, e.g., Docket No. 162 at 3-4. Moreover, Parsons
has clarified that he is not seeking through the instant
motion to represent the named plaintiffs in their
representative capacity. Docket No. 164 at 4. With that
agreement and understanding in mind, the Court GRANTS the
motion for Parsons to be substituted as counsel for Trina
Britain, Ronald Brooks, Nubia Grajeda, Kenneth Hawkes, Eric
Prunty, Tom Serrano, Michael Smith, and Lamons Walker in
their individual capacities only, with Marks & Levine
remaining as their counsel in their representative
Motion to Substitute-Opt-In Plaintiffs
also wishes to be substituted as counsel for 38 of the opt-in
plaintiffs. Docket No. 160 at 5-6. United States District
Judge Jennifer A. Dorsey considered the applicable factors
and determined that Marks & Levine can fairly and adequately
perform the role of interim class counsel in this matter.
Docket No. 118 at 9. The notice to potential members of the
collective action further explained the role of Marks &
Levine. As an initial matter, that notice explained:
You have a right to consult or retain other counsel, but by
joining this lawsuit, you designate the named Plaintiffs as
your agent to make decisions on your behalf concerning the
litigation such as the method and manner of conducting or
settling the litigation.
Docket No. 111-1 at 4-5. The notice went on to explain the
impact of joining the litigation with respect to the choice
of counsel: “If you choose to join this lawsuit, your
interest will be represented by the attorneys listed below:
DANIEL MARKS, ESQ., ADAM LEVINE, ESQ., LAW OFFICE OF DANIEL
MARKS.” Id. at 5. Hence, the notice is clear:
while a would-be opt-in plaintiff has the right to consult or
retain counsel, once they join the lawsuit their interests
are represented by the named plaintiffs and the attorneys
Marks & Levine. Indeed, Parsons' reply acknowledges that
“once a prospective collective action member opts-in to
the collective, they consent to the named Plaintiffs
representing their interests through collective action
counsel.” Docket No. 164 at 5.
reply clarifies that Parsons really only seeks to represent
these opt-in plaintiffs in their “individual”
capacity. The Court is unclear exactly what it is Parsons
intends to do on behalf of these opt-in plaintiffs. Generally
speaking, opt-in plaintiffs are not actively involved in
litigating the case, as Parsons himself implicitly
recognizes. See Id. at 5 (Parsons' assertion
that he hopes to protect these plaintiffs' interests
“insofar as we are able to in our role as individual
counsel”).Hence, any personal attorney they hire
similarly would not actively participate in the litigation.
Instead, the active participation in the litigation falls on
the shoulders of the named plaintiffs, who represent the
opt-in plaintiffs, and the appointed class counsel. See,
e.g., Docket No. 111-1 at 4-5. The rules governing
substitution of counsel are concerned with ...