DEFENDANT'S SECOND RENEWED MOTION TO DISMISS

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
MANHATTAN V UNTERBURGER
DOCKET / CHRONOLOGICAL FILE
DEFENDANT'S SECOND RENEWED MOTION TO DISMISS

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
NORTHERN DIVISION
Case No.: 99-8164-CIV-WPB-HURLEY

MANHATTAN MAGNOLIA CORP., et al.,
Plaintiffs,
vs.
RAYMOND UNTERBURGER, et al.,
Defendants.

DEFENDANT'S SECOND RENEWED MOTION TO DISMISS FOR VIOLATION OF LOCAL RULE 4, SPECIAL RULES OF THE SOUTHERN DISTRICT OF FLORIDA, AND SECOND RENEWED OPPOSITION OF DEFENDANTS RAYMOND UNTERBURGER, CHERYL UNTERBURGER, MEREDITH T. RANEY, ERIC OLSON, WILLIAM L. LESTOURGEON, JOHN ("JAY") C. ROGERS, PATRICIA ("PAT") MCEWEN, MICHELLE HERZOG, RICHARD VANDERBILT AND PATRICIA VANDERBILT TO APPLICATION OF ROY LUCAS TO APPEAR PRO HAC VICE AND MEMORANDUM IN SUPPORT

COME NOW the Defendants, by and through their undersigned counsel, and move this Honorable Court for an Order dismissing this action for violation of Local Rule 4, Special Rules of the Southern District of Florida. Additionally, Defendants renew their request served on May 19, 1999, and again on January 27, 2000, that this Court deny the application of Roy Lucas to Appear pro hac vice in the United States District Court for the Southern District of Florida in light of his abuse of the pro hac vice privileges in this jurisdiction and in the United States District Court for the Middle District of Florida, and in support thereof would state as follows:

1. On April 9, 1999, this Court entered an Order granting pro hac vice status to Plaintiff's lead counsel, Mr. Roy Lucas.

2. Pursuant to Local Rule 4. B., Special Rules of the Southern District of Florida, Defendants move this Honorable Court for an order dismissing this action for violation of Local Rule 4. B. because, as stated below, Mr. Lucas has abused the privilege of appearing pro hac vice in the state of Florida.

3. On May 19, 1999, the undersigned served the Opposition of Defendants Raymond Unterburger, Cheryl Unterburger, Meredith T. Raney, Eric Olson, William L. Lestourgeon, John ("Jay") C. Rogers, Patricia ("Pat") McEwen, Michelle Herzog, Richard Vanderbilt and Patricia Vanderbilt to Application of Roy Lucas to Appear Pro Hac Vice and Memorandum in Support.

4. On January 27, 2000, the undersigned served the Renewed Opposition of Defendants Raymond Unterburger, Cheryl Unterburger, Meredith T. Raney, Eric Olson, William L. Lestourgeon, John ("Jay") C. Rogers, Patricia ("Pat") McEwen, Michelle Herzog, Richard Vanderbilt and Patricia Vanderbilt to Application of Roy Lucas to Appear Pro Hac Vice and Memorandum in Support.

5. The basis of the Defendants' Opposition is that Mr. Lucas is abusing the privilege of appearing pro hac vice in this Court and the state of Florida because he is litigating numerous cases in Florida courts under the auspicious of pro hac vice admission.

6. On February 17, 2000, this Honorable Court held a Status Conference. At the Status Conference, the undersigned respectfully requested that this Honorable Court note Mr. Lucas' violation of Local Rule 4. B.

7. On February 28, 2000, this Honorable Court entered an Omnibus Order Staying Case, Requiring Compliance with the Local Rules, and Denying as Moot Pending Motions. The Omnibus Order specifically held that, "Mr. Lucas shall also file a verified notice listing any case in which he has appeared as counsel that was filed on or after January 1, 1998 in any court located within the state of Florida." (See attached exhibit 1).

8. The February 28, 2000, Omnibus Order further held that, "Defendants' motion to dismiss [DE #50] is DENIED. However, the court will entertain a new motion should Mr. Lucas fail to comply with the local rules or this order." (See attached exhibit 1).

9. As of the date of serving this Renewed Motion, Mr. Lucas has failed to comply with the February 28, 2000, Omnibus Order. Mr. Lucas has not filed any notice, verified or otherwise, "listing any case in which he has appeared as counsel that was filed on or after January 1, 1998 in any court located within the state of Florida."

10. Following the Status Conference, Mr. Lucas corresponded with the undersigned in a memo wherein Mr. Lucas stated, "I am surprised that you continue to oppose my pro hac vice participation in these cases. Your continued harassment on such a minor matter surely discredits you . . . . Those are no-win non-issues and a waste of your time."

11. In light of Mr. Lucas' failure to comply with this Honorable Court's Omnibus Order, the undersigned respectfully requests that this Renewed Motion not be denied until after Mr. Lucas does comply because the verified notice demanded by this Court's Omnibus Order could reveal additional cases as yet unknown to this Court and the undersigned. However, because Mr. Lucas has repeatedly demonstrated his unwillingness to comply with court orders (as revealed below), the undersigned respectfully requests that this Renewed Motion to be granted due to Mr. Lucas' failure to comply.

12. As of the date of serving this Renewed Motion, the undersigned is not aware of all the cases in which Mr. Lucas "has appeared as counsel that was filed on or after January 1, 1998 in any court located within the state of Florida." However, the following provides a summary of some cases known to the undersigned.

13. In December 1998, Mr. Lucas filed an action as plaintiffs' lead counsel and continued to appear pro hac vice in the United States District Court in and for the Middle District of Florida as plaintiff's lead counsel in the case of Ocala Women's Center, Inc., et al. vs. City of Ocala, Florida, et al., Case No.: 98-371-CIV-OC-10C. The court dismissed the case because Mr. Lucas failed to prosecute the case or cooperate with discovery. Like this case, in the Ocala Women's Center, Inc., et al. vs. City of Ocala, Florida, et al., case, Mr. Lucas sought a stay of the proceedings and then simply failed to cooperate in discovery or prosecute the case. The court dismissed the case and held that if Mr. Lucas brought the action again, the defendants "may renew the claims for attorney's fees as a condition to the maintenance of such action." (See attached exhibit 2). Mr. Lucas then appealed the case to the Eleventh Circuit Court of Appeals. However, Mr. Lucas failed to file his briefs on appeal. The Eleventh then dismissed the appeal.

14. On January 4, 1999, Mr. Lucas filed an action as plaintiffs' lead counsel and continued to appear pro hac vice in the United States District Court in and for the Middle District of Florida as plaintiff's lead counsel in Aware Women's Center For Choice, Inc. v. Raney, Case No. 99-05-CV-ORL-19C. In the Aware Women's Center For Choice, Inc. v. Raney, case, attorney's fees and costs were awarded against Mr. Lucas and the plaintiffs because the court found they engaged in "vexatious conduct". (See attached exhibit 3). In that case, the court dismissed the action holding that:

The plaintiffs have been delinquent in prosecuting this case. As evidence, the plaintiffs have failed to serve many of the defendants. When asked to explain their failure, the plaintiffs stated that, while they had in fact served the defendants with the complaint, "the initial round of service included only the complaint, not a Court-issued summons," (Doc. 42.) The plaintiffs offered to complete service on June 2, 1999, but the record is devoid of any evidence that the plaintiffs effected the promised service. Additionally, the plaintiffs have failed to file a case management report. In response to an order to show cause, the plaintiffs asked for an extension of time to file the report because, among other reasons, the plaintiffs wanted to amend their complaint. (Doc. 54.) Finally, the plaintiffs have failed to file any responses to several of the defendants' motions, including two motions to dismiss (docs, 40, 44), a motion for summary judgment (doc. 48), and a motion for rule 11 sanctions (doc. 55). Because the plaintiffs have failed to serve several of the defendants, have failed to file a case management plan, and have failed to respond to several of the defendants' motions, the plaintiffs' case should be dismissed."

(See attached exhibit 3)

15. On March 2, 1999, Mr. Lucas filed this action in the United States District Court in and for the Southern District of Florida as Plaintiff's lead counsel. As in all the other cases brought by Mr. Lucas, he has again failed to communicate with counsel. In this case, however, he additionally failed to communicate with his own Local Counsel. On January 26, 2000, the original Local Counsel for Plaintiffs, Ms. Richards, served a Notice of Rosemarie Richard's Withdrawal of Consent of Designation as Plaintiff's Local Counsel and a proposed order granting her request to withdraw. The withdrawal was sought because Mr. Lucas failed to communicate with his own Local Counsel despite her repeated calls and letters to Mr. Lucas.

16. For over one year, Mr. Lucas has also appeared pro hac vice in the United States District Court in and for the Middle District of Florida as defendant's lead counsel in Raney v. Aware Women's Center For Choice, Inc., Case No.: 97-1197-CV-ORL-19B.

17. The undersigned never received a copy of Mr. Lucas' application for admission to appear in this action pro hac vice thereby causing the initial delay in filing the May 19, 1999, Opposition.

18. Pursuant to Local Rule 7.1.A.3., counsel for the Defendants named herein has attempted to confer with counsel for the Plaintiffs, Mr. Lucas. As has been his course of practice throughout this case (even in relation to his prior Local Counsel), Mr. Lucas has failed to communicate with the undersigned regarding the contents of this motion. Pursuant to Local Rule 7.1.A.3., counsel for the Defendants named herein has attempted to confer with the new Local Counsel for the Plaintiffs, Mr. Saylor. Mr. Saylor and the undersigned discussed the contents of this motion, but Mr. Saylor would not state that he objects or consents to this motion.

19. The Defendants named herein who have not been served do not, by entering this motion, waive service of process or any other defense based upon service of process and/or jurisdiction.

MEMORANDUM OF LAW

Pursuant to this Honorable Court's February 28, 2000, Omnibus Order Staying Case, Requiring Compliance with the Local Rules, and Denying as Moot Pending Motions and pursuant to Local Rule 4. B., Special Rules of the Southern District of Florida, Defendants move this Honorable Court for an order dismissing this action for violation of Local Rule 4. B. As of the date of serving this Renewed Motion, Mr. Lucas has failed to comply with the February 28, 2000, Omnibus Order. Mr. Lucas has not filed any notice, verified or otherwise, "listing any case in which he has appeared as counsel that was filed on or after January 1, 1998 in any court located within the state of Florida." As stated below, Mr. Lucas has abused the privilege of appearing pro hac vice in this Honorable Court.

Pursuant to Disciplinary Rule 10-Attorneys Specially Admitted, whenever an attorney applies to be admitted or is admitted to this Court for purposes of a particular proceeding (pro hac vice), the attorney shall be deemed thereby to have conferred disciplinary jurisdiction upon this Court for any alleged misconduct arising in the course of or in the preparation for such a proceeding which is a violation this Court's Local Rules and/or the Rule of Professional Conduct adopted by this Court as provided in these Rules.

According to Rules of Professional Conduct Rule 4-8.5, a lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere. The Comments of Rule 4-8.5 state that if the lawyer's activity in a jurisdiction is substantial and continuous, it may constitute the practice of law in that jurisdiction.

The undersigned is aware that Mr. Lucas has applied pro hac vice and appeared four times (at least) in four separate cases in a very short time. Due to Mr. Lucas' failure to comply with this Honorable Court's February 28, 2000, Omnibus Order Staying Case, Requiring Compliance with the Local Rules, and Denying as Moot Pending Motions, the undersigned is not aware of all the cases in the state of Florida in which Mr. Lucas may have appeared. Mr. Lucas has practiced law in (at least) three cases in the courts of the Middle District of Florida and in this case in the Southern District of Florida. The frequency of pro hac vice appearances within such a limited time span in (at least) four separate cases gives rise to the abuse of the pro hac vice privilege. His appearance in this district will constitute (at least) the forth attempt. Four pro hac vice appearances within such a limited time are "substantial and continuous" and constitute the practice of law without being admitted to The Florida Bar. Pursuant to Florida Rules of Judicial Administration Rule 2.060(b), attorneys of other states shall not engage in a general practice in Florida unless they are members of The Florida Bar in good standing.

In Keller Industries, Inc. v. Yoder, 625 So. 2d 82 (1st DCA Fla. 1993), the court upheld a pro hac vice request in which the attorney appeared three times, within three years. The court viewed these appearances in Florida as limited in that they did not constitute the general practice in of law in Florida thereby requiring that counsel become a member of the Florida Bar. In contrast, Mr. Lucas has appeared (at least) four times in Florida -- three times as lead counsel for plaintiffs and once as defense counsel -- with filing separated by less than four months. Under this analysis, these appearances are not limited but are frequent. Therefore, Mr. Lucas's pro hac vice appearances are activities that can be characterized as "substantial and continuous" thus constituting the practice of law in Florida.

WHEREFORE the Defendants, by and through their undersigned counsel, hereby move this Honorable Court for an Order dismissing this action in light of Mr. Lucas' failure to comply with this Honorable Court's February 28, 2000, Omnibus Order Staying Case, Requiring Compliance with the Local Rules, and Denying as Moot Pending Motions and as a violation of Local Rule 4, Special Rules of the Southern District of Florida. Additionally, Defendants renew their requests served on May 19, 1999, and January 27, 2000, that this Court deny the application of Roy Lucas to Appear pro hac vice in the United States District Court for the Southern District of Florida for the abuse of the pro hac vice privileges in this jurisdiction and in the state of Florida.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been served on all parties required to be served on this ____ day of April, 2000, by first class U.S. Mail delivery to:

Plaintiffs' Counsel:
ROY LUCAS
Post Office Box 141064
Orlando, Florida 32814-1064

ROBERT SAYLOR
1-B The Barristers
1615 Forum Place
West Palm Beach, Florida 33401

Defendants' Counsel:
CHARLES SCHEELER
38 South Charles Street
Baltimore, MD 21201-3018

JOHN MARINO
50 North Laura Street
Suite 2800
Jacksonville, Florida 32202

Frederick H. Nelson (signed)
Trial Attorney
Florida Bar No. 0990523
American Liberties Institute
P.O. Box 547503
Orlando, FL 32854-7503
(407) 786-7007 - voice
(407) 786-2705 - fax
Attorney for Defendants
Raymond Unterburger, Cheryl Unterburger, Meredith T. Raney, Eric Olson, William L. Lestourgeon, John ("Jay") C. Rogers, Patricia ("Pat") McEwen, Michelle Herzog, Richard Vanderbilt and Patricia Vanderbilt