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Britain v. Clark County

United States District Court, D. Nevada

January 12, 2017

TRINA BRITAIN, et al., Plaintiff(s),
v.
CLARK COUNTY, NEVADA, Defendant(s).

          ORDER

          NANCY J. KOPPE United States Magistrate Judge

         Pending before the Court are a variety of motions regarding a dispute as to the representation of various Plaintiffs in this case.

         First, 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.

         Second, Parsons filed a motion to submit additional evidence. Docket No. 165. Marks & Levine filed a response in opposition. Docket No. 171.

         Third, 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.

         Fourth, 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.

         The Court finds the motions properly resolved without a hearing. See Local Rule 78-1.

         I. Motion to Substitute-Named Plaintiffs

         Parsons 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 capacities.

         II. Motion to Substitute-Opt-In Plaintiffs

         Parsons 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.

         The 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”).[1]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 ...


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