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Raub v. US Airways, Inc.

United States District Court, E.D. Pennsylvania

November 7, 2017

REGINA RAUB, Plaintiff,
v.
US AIRWAYS, INC., and UNITED STATES OF AMERICA, Defendants.

          MEMORANDUM

          DuBois, J.

         I. INTRODUCTION

         Plaintiff Regina Raub brought this action seeking damages for injuries allegedly sustained during a U.S. Airways flight as a result of unexpected turbulence. See Pl.'s Memo in Opp. to Def.'s Mot. for Sanctions at 6 (Document No. 55, filed Aug. 11, 2017). Presently before the Court is defendant U.S. Airways' Motion for Sanctions for Plaintiff's Counsel's Violations of Rules of Professional Conduct 4.1 and 4.2. (“Motion for Sanctions”). For the reasons that follow, the motion is denied.

         II. BACKGROUND

         Plaintiff filed an Amended Complaint on October 25, 2016, for injuries sustained during U.S. Airways Flight 815 travelling from Cancun, Mexico, to Philadelphia, Pennsylvania, when the flight encountered unexpected turbulence, asserting that U.S. Airways is liable under the Montreal Convention.[1] First Am. Compl. (Document No. 19). Plaintiff alleges that U.S. Airways owed passengers a duty to ensure their safety during the flight, which included a duty to inspect aircraft equipment and seatbelts and to avoid areas of high turbulence. See Id. ¶¶ 41-51. In that complaint, plaintiff also asserted claims against the United States of America, through the Federal Aviation Administration (“FAA”), for negligence based on alleged failure to detect and warn U.S. Airways of the turbulence. See First Am. Compl. at ¶ 52.[2]

         On July 28, 2017, U.S. Airways filed the pending Motion for Sanctions, alleging that plaintiff's attorney, Alisa Brodkowitz, engaged in ex parte communications with two U.S. Airways flight attendants in violation of Pennsylvania Rule of Professional Conduct 4.2, which prohibits a lawyer from communicating “about the subject matter of the representation with a person the lawyer knows to be represented by another lawyer in the matter” without prior authorization.[3] Pa. R.P.C. 4.2. U.S. Airways further alleges that, during the course of these communications, Brodkowitz made misleading statements in violation of Pennsylvania Rule of Professional Conduct 4.1, which provides that a lawyer shall not knowingly “make a false statement of material fact or law to a third person.” Pa. R.P.C. 4.1.

         In its motion, U.S. Airways asked the Court to: (1) revoke Brodkowitz's pro hac vice admission; (2) require Brodkowitz to produce any information obtained during her communications with the flight attendants; (3) prohibit the use of any information or evidence obtained during her communications with the flight attendants at trial; and (4) require plaintiff's counsel to reimburse U.S. Airways for reasonable attorneys' fees and expenses incurred in connection with its motion. See Mot. for Sanctions at 17.

         On October 18, 2017, U.S. Airways stipulated to liability in this case. Stipulation Regarding Defs.' Election Not to Contest Liability (Document No. 67). As a consequence of the stipulation, U.S. Airways now seeks as a sanction only revocation of Brodkowitz's pro hac vice admission.

         III. APPLICABLE LAW

         The United States District Court for the Eastern District of Pennsylvania has adopted and enforces Pennsylvania's Rules of Professional Conduct. Belote v. Maritrans Operating Partners, L.P., 97-CV-3993, 1998 WL 136523, at *1782 (E.D. Pa. Mar. 20, 1998); E.D. Pa. Local R. 83.6 (1995).

         Courts have “inherent authority to impose sanctions upon those who would abuse the judicial process.” Republic of the Philippines v. Westinghouse Elec., 43 F.3d 65, 73 (3d Cir. 1994) (emphasis in original) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 43-44 (1991)). “Because of their very potency, inherent powers must be exercised with restraint and discretion.” Chambers, 501 U.S. at 44. In imposing sanctions, the United States Court of Appeals for the Third Circuit requires that district courts tailor the sanction to appropriately address the harm identified. Republic of the Philippines, 43 F.3d at 74. First, the court must examine the conduct at issue and explain why a sanction is warranted. See Id. (directing courts to consider patterns of wrongdoing; the severity of the infraction; and the level of harm or prejudice to the adversary). Next, the court must consider the range of available sanctions and explain why the particular sanction chosen is appropriate. Id.

         An attorney from one state who is regularly admitted and licensed to practice therein may be “admitted to a particular jurisdiction . . . for the purpose of conducting a particular case.” Gsell v. Rubin and Yates, LLC, 41 F.Supp.3d 443, 445 n.3 (E.D. Pa. 2014) (quoting Black's Law Dictionary (9th ed. 2009)). “[T]he rights and duties of an outside lawyer, once so admitted, appear to be the same as those of a local lawyer.” Cooper v. Hutchinson, 184 F.2d 119, 123 (3d Cir. 1950). Accordingly, a violation of disciplinary standards applicable to members of the bar may justify revocation of pro hac vice admission. Eagan by Keith v. Jackson, 855 F.Supp. 765, 791 (E.D. Pa. 1994) (citing Johnson v. Trueblood, 629 F.2d 302, 304 (3d Cir. 1980)).

         If a court determines that revocation of pro hac vice admission is an appropriate sanction, counsel must be provided with “notice of the conduct placing his or her pro hac vice status at risk, notice of the standard the . . . court will apply in deciding whether to revoke that status, an opportunity to respond, and written reasons for any revocation.” Eagan by Keith v. Jackson, 855 F.Supp. at 791 (citing Taberer v. Armstrong World Indus., Inc., 954 F.2d 888, 910 (3d Cir. 1992)). “While it is indeed true that admission pro hac vice is a privilege, not a right, revocation of that privilege, once bestowed, sends a strong message which works a lasting hardship on an attorney's reputation.” Mruz v. Caring, Inc., 166 F.Supp.2d 61, 70 (D.N.J. 2001) (citation omitted). Accordingly, disqualification is an “ ‘extreme sanction' that should not be imposed lightly.” Regional Employers' Assur. Leagues Voluntary Employees' Beneficiary Ass'n Trust v. Castellano, No. 03-CV-6903, 2009 WL 1911671, at *2 (E.D. Pa. July 1, 2009) (quoting Shade v. Great Lakes Dredge & Dock Co., 72 F.Supp.2d 518, 520 (E.D. Pa. 1999)).

         To prevail on a motion to disqualify counsel, the movant bears the burden of establishing that a particular sanction is warranted. Marino v. Usher, No. 11-CV-6811, 2014 WL 2116114, at *6 (E.D. Pa. 2014). In deciding a motion for disqualification, “the court must consider the client's right to be represented by the counsel of his choice, as well as the opposing party's right to prepare and try its case without prejudice.” See University Patents, Inc. v. Kligman,737 F.Supp. 325, 329 (E.D. Pa.1990) (citing Plunto v. Wallenstein, No. ...


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