Opinion
No. 1 CA-CV 14-0196
11-03-2015
JIN AH LEE, decedent, by her estate representative, JUNGIL LEE; SANG CHUL LEE, decedent's father, and DUKSON LEE, decedent's mother, Plaintiffs/Appellants, v. ANC CAR RENTAL CORP.; GENERAL MOTORS CORP.; and HONG-JUN JEON, Defendants/Appellees.
COUNSEL Shorall McGoldrick Brinkmann, Phoenix By Scott M. Zerlaut Counsel for Plaintiffs/Appellants Farhang & Medcoff, PLLC, Tucson By Timothy M. Medcoff, Meredith K. Marder Counsel for Defendant/Appellee ANC Car Rental Corp. Bowman and Brooke LLP, Phoenix By Thomas M. Klein, C. Megan Fischer Counsel for Defendant/Appellee General Motors Corp. Spiess & Bell, P.C., Phoenix By G. Peter Spiess Counsel for Defendant/Appellee Hong-Jun Jeon
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Coconino County
No. S0300CV20050307
The Honorable Joseph Lodge, Judge (Retired)
The Honorable Cathleen Brown Nichols, Judge
AFFIRMED
COUNSEL Shorall McGoldrick Brinkmann, Phoenix
By Scott M. Zerlaut
Counsel for Plaintiffs/Appellants
Farhang & Medcoff, PLLC, Tucson
By Timothy M. Medcoff, Meredith K. Marder
Counsel for Defendant/Appellee ANC Car Rental Corp.
Bowman and Brooke LLP, Phoenix
By Thomas M. Klein, C. Megan Fischer
Counsel for Defendant/Appellee General Motors Corp.
Spiess & Bell, P.C., Phoenix
By G. Peter Spiess
Counsel for Defendant/Appellee Hong-Jun Jeon
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Kenton D. Jones and Judge Samuel A. Thumma joined. SWANN, Judge:
¶1 Sang Chul Lee and Dukson Lee appeal the superior court's order dismissing their wrongful death action for failure to prosecute, as well as its order revoking the pro hac vice admission of the Lees' attorney, Michael S. Kimm. Because plaintiffs' counsel has made fair litigation of the case impossible by more than a decade of delay and consistent disregard for the rules and orders of the Arizona courts, we affirm both orders.
FACTS AND PROCEDURAL HISTORY
¶2 On June 1, 2003, Jin Ah Lee, a South Korean national, died after a single-vehicle rollover accident outside Kayenta in Navajo County. Hong-Jun Jeon, also a South Korean national, drove the car, which he had rented from Alamo ("ANC"). Sang Chul Lee and Dukson Lee, Jin Ah Lee's parents, filed three identical actions concerning the accident. The Lees are citizens and residents of South Korea; they speak primarily Korean. Mr. Lee had a preexisting business relationship with attorney Michael S. Kimm and relied upon him to prosecute the actions. Kimm is licensed to practice law in New York and New Jersey.
Claims on behalf of Jin Ah Lee by her representative, Jungil Lee, were dismissed January 25, 2008, in Coconino County superior court. Jungil Lee was not properly appointed the decedent's personal representative and consequently lacked standing to bring the action.
Federal Court Action: 2003-2007
¶3 The Lees first brought an action in the United States District Court for the District of Arizona on August 11, 2003, against Jeon for negligent driving; ANC for wrongful rental, rental of unsafe vehicles, wrongful entrustment and failure to warn; General Motors ("GM") for improper design, improper manufacturing, improper testing and failure to warn. The district court dismissed the matter for lack of complete diversity and the Ninth Circuit affirmed the dismissal. The Lees unsuccessfully sought review of the jurisdictional issue in the United States Supreme Court.
Hudson County New Jersey Superior Court Action: 2005-2007
¶4 While the federal appeal was pending, the Lees filed an identical action against the same parties in New Jersey Superior Court in Hudson County in March 2005. That court dismissed the action against defendant Jeon for lack of personal jurisdiction, and dismissed the action against the remaining parties on grounds of forum non conveniens. The Lees appealed the dismissal, but the court dismissed the appeal for failure to file a timely brief.
Coconino County Superior Court Action: 2005-2014
¶5 On May 18, 2005, the Lees filed an identical action in Arizona Superior Court in Coconino County. The court stayed the case pending the resolution of the New Jersey case and the Ninth Circuit appeal, then placed the action on the inactive calendar. The case resumed in 2007 and was placed on the active calendar. The parties stipulated to extend discovery deadlines several times. But by January 2009, counsel for defendant Jeon had no current contact information for his client. In March 2009, however, the parties reported that discovery was moving forward.
The parties stipulated that the case could continue in Coconino County, despite the fact that events giving rise to the case occurred in Navajo County.
On March 29, 2012, the Lees' counsel, Kimm, located Jeon and provided contact information to his attorney.
¶6 When the Arizona superior court action began in 2005, the Lees' attorney, Kimm, was not admitted to practice in Arizona. The court first noted at a July 2007 case management conference that Kimm had not yet applied for pro hac vice admission and instructed him to file his application immediately and associate with local counsel. The court advised him that if he did not apply for admission within 60 days, the defendants could file a motion to dismiss. In September 2007, after the end of the 60-day period, local counsel sent Kimm a letter expressing concern that Kimm had not yet applied for pro hac vice admission. The court ultimately granted Kimm and co-counsel, Kim Sparano, pro hac vice status in January 2008, but later discovered that Kimm's application was missing documentation concerning disciplinary proceedings against him. The judge instructed Kimm to file the remaining materials within 60 days but did not revoke his admission.
¶7 With discovery still in progress, defendant GM sought bankruptcy protection. The Lees' case was automatically stayed until 2011, when the parties stipulated to a lift of the stay. In September 2011, GM removed the case to the United States District Court for the District of Arizona, but that court promptly remanded the case back to superior court. After reassignment of the case to a new judge, the parties agreed to discovery deadlines, and the court set a trial date of October 9, 2012. Later, by stipulation, the parties agreed to extend the deadlines and set trial for April 2, 2013.
¶8 Kimm maintained his pro hac vice status until January 2012, when it lapsed for non-payment of yearly fees. In April 2012, GM and ANC filed a notice of pro hac vice status and a motion to disqualify. On May 4, 2012, Kimm submitted a second pro hac vice application. The court again granted pro hac vice status to Kimm and his co-counsel, Francesco Savoia, on May 22, 2012. In June 2012, GM and ANC moved for reconsideration of the order granting Kimm's pro hac vice status. The court reconsidered and denied Kimm's application for pro hac vice status, "based in part on Counsel Kimm's failure to follow the rules."
¶9 Local counsel withdrew in September 2012, and the court stayed discovery until the Lees could find substitute counsel. After the Lees failed to find new local counsel by November, the court ordered them to retain new counsel within 45 days or "their case w[ould] be dismissed for failure to prosecute without further notice or further filings by the parties."
¶10 The case was re-assigned to Judge Nichols in 2013. The Lees filed a motion for reconsideration of the order rejecting the application for pro hac vice status in January 2013. The judge affirmed the denial and further ordered: "the Court gives Mr. Savoia sixty (60) days from today to find associate counsel in Arizona to represent the Plaintiffs in this case. If Mr. Savoia does not find associate counsel in Arizona to assist him in representing the Plaintiffs pro hac vice the Court will entertain a Motion to Dismiss the case." The Lees filed another motion for reconsideration of Kimm's pro hac vice admission in June 2013, in which they asserted that they were having difficulty obtaining replacement counsel.
¶11 Because the Lees were still not able to find new local counsel, the defendants collectively filed a motion to dismiss for failure to prosecute in June 2013, more than eight years after the Lees first filed the superior court action. The court held oral argument on the pro hac vice issue in October 2013. In a lengthy decision issued in January 2014, the court denied the motion to associate counsel and the motion to reconsider its earlier order, and granted the motion to dismiss for lack of prosecution. The Lees timely appeal.
DISCUSSION
I. DISMISSAL FOR LACK OF PROSECUTION
¶12 We review dismissals for failure to prosecute a civil case for an abuse of discretion. See Jepson v. New, 164 Ariz. 265, 269-70 (1990). The plaintiff has a duty to pursue his case diligently and ensure it is brought to trial within a reasonable amount of time. Price v. Sunfield, 57 Ariz. 142, 148-49 (1941). If the plaintiff has abandoned the case or caused delay that prejudiced the defendants, dismissal is the proper remedy. Id. at 148; Ariz. R. Civ. P. 41(b). The trial court also has the inherent power to dismiss the case on its own motion. Slaughter v. Maricopa County, 227 Ariz. 323, 326, ¶ 14 (App. 2011) (citing Cooper v. Odom, 6 Ariz. App. 466, 469 (App. 1967)).
¶13 To determine whether the plaintiff's prosecution of an action is adequate, the court considers both parties' activities and other factors that might impede prompt resolution of the case. Jepson, 164 Ariz. at 276. While Arizona courts prefer to decide cases on their merits, "there is a limit to which judicial leniency can be stretched." Adams v. Valley Nat'l Bank of Ariz., 139 Ariz. 340, 342 (App. 1984). This is not a case of abandonment but rather one of delay.
¶14 While the appellants were not responsible for all of the delays, they were responsible for the majority of them. Kimm, lead counsel for the Lees, established a pattern of missed deadlines and failure to follow court orders stretching back to the initial federal court proceedings. He failed to file his pro hac vice application within 60 days, contrary to the court's order, and he was aware or should have been aware as early as February 8, 2012, of his lapsed pro hac vice status, but he did not reapply until May 2012. The majority of filings between 2012 and 2014 did not address the merits of the case but rather, counsel's pro hac vice status. And though maintenance of pro hac vice status is important, it is -- for most counsel -- a simple and routine procedure that should not eclipse the handling of the merits. The record also shows many discovery delays from Kimm's failure to respond to scheduling requests.
¶15 Duplicative actions also contributed to the delay -- the multiplicity of identical actions was both inefficient and unnecessary. Far more effort was devoted to selection of counsel and forum than pursuit of a judgment on the merits. The initial action in district court was improper, and the subsequent Ninth Circuit appeal and petition for certiorari were poorly considered if not substantially without merit. Kimm then filed the New Jersey action for his and the plaintiffs' convenience, though it was clear that the court would not have personal jurisdiction over Jeon and that it was an inconvenient forum for witnesses as the accident occurred in Arizona. As these procedural matters were litigated and appealed unsuccessfully in other court systems, years went by, though a proper forum was available.
¶16 And the Lees had ample notice that their action was in danger of dismissal. Two court orders, including one translated into Korean and sent directly to the Lees, advised them that the consequence for failing to abide by court orders would be dismissal.
¶17 The years of delay have caused prejudice to the appellees both by expanding the cost of litigation and by hindering access to witnesses. Many of the witnesses have still not been deposed. Indeed, during the 11 years since the plaintiffs first filed an action, they have taken no depositions. No liability issues have been adjudicated on the merits, and the parties now face difficulties locating witnesses. And undoubtedly, the passage of more than a decade since the accident has impacted witnesses' memories.
¶18 The superior court was properly reluctant to deprive appellants of their day in court because of the conduct of their counsel. But in the face of such extreme failure to pursue a decision on the merits, we conclude that the court did not abuse its discretion by ordering dismissal. II. REVOCATION OF MICHAEL KIMM'S PRO HAC VICE ADMISSION
¶19 An out-of-state attorney who is not a member of the State Bar of Arizona may be admitted pro hac vice if he is a member in good standing of another state bar and associates with local counsel who is a member in good standing of the State Bar of Arizona. Ariz. R. Sup. Ct. 38(a)(1)-(2). The applicant must disclose in his application any past or pending disciplinary matters in any jurisdiction. Ariz. R. Sup. Ct. 38(a)(4)(E)-(G).
¶20 The non-Arizona attorney must also renew his application yearly, but if he fails to pay the application fees, he "shall be suspended from appearance in any cause upon the expiration of a period of thirty days from the anniversary date." Ariz. R. Sup. Ct. 38(a)(8)-(9) (emphasis added). The non-Arizona attorney is eligible for reinstatement if he pays the renewal fee plus a penalty. Id. Appearance pro hac vice, though, is at the discretion of the court which hears the case. Ariz. R. Sup. Ct. 38(a)(3). And intentionally wrongful conduct or deliberate violation of a law, court rule or order can justify revocation of pro hac vice admission. Speer v. Donfeld, 193 Ariz. 29, 31, 35, ¶¶ 8-9, 23 (App. 1998). We review such revocations for abuse of discretion. Id. at 31, ¶ 8.
¶21 An attorney admitted to appear pro hac vice in Arizona's courts submits to the disciplinary jurisdiction of the Supreme Court and is subject to the same discipline as a member of the State Bar of Arizona. Ariz. R. Sup. Ct. 46(b). An attorney not admitted to practice in Arizona shall not "represent that [he] is admitted to practice law in this jurisdiction." Ariz. R. Sup. Ct. 42, ER 5.5(b)(2). Unauthorized practice of law in the jurisdiction subjects an attorney to discipline from the state bar. Ariz. R. Sup. Ct. 42, ER 5.5(g). Pro hac vice status, therefore, is not a mere technicality -- it goes to the very foundation of a lawyer's ability to represent his client.
¶22 The Lees counter that the lapse of Kimm's pro hac vice status for failure to pay the required fees is an administrative -- not ethical -- matter that was cured by payment. But the issue is not that Kimm failed to pay the fees, but that he knowingly appeared in an Arizona court before having been admitted pro hac vice and continued to appear in that court on behalf of the Lees, knowing his status had lapsed. These are not trivial administrative oversights. See In re Phelps, 154 Ariz. 516 (1994) (holding that in light of previous violations, disbarment was an appropriate sanction for an attorney who had appeared in court and filed pleadings while suspended for non-payment of bar membership fees).
¶23 Before Kimm's eventual admission in 2008, he engaged in the unauthorized practice of law in Arizona for more than two years. From May 2005, when the Lees filed the action in superior court, to January 2008, Kimm was not admitted to practice law in Arizona in any capacity. During that period, Kimm filed documents with the court, participated in case management conferences, and communicated with opposing counsel in violation of ER 5.5(a) and ER 5.5(b)(2). Despite the July 2007 order to apply for admission within 60 days, Kimm did not apply until November 2007, and did not seek to associate local counsel until later. Between the order and the application, Kimm continued to represent the Lees in court in violation of ER 5.5(b)(2). And when he did submit his application, he did not fully disclose his disciplinary record in New Jersey, in violation of Rule 38(a)(4)(F)-(G).
¶24 Following the GM bankruptcy proceedings when the case resumed in the superior court, Kimm's pro hac vice status lapsed for non-payment of fees on January 13, 2012, and he was not readmitted until May 22, 2012. Again, during this time, Kimm continued to participate in depositions and file documents with the court, violating ER 5.5(b)(2). Even within this appeal, Kimm's name appears as "of counsel" on the opening brief in this court, despite the clear absence of authority to practice in this state's courts.
Kimm could have instead filed a special action in his own name to appeal the pro hac vice ruling. See Speer, 193 Ariz. at 30, ¶ 1.
¶25 The court gave Kimm many opportunities and time extensions to correct the defects in his submissions and conduct, but he failed to do so. We find no abuse of discretion; the record supports the decision to revoke Kimm's pro hac vice status for his unauthorized practice of law in Arizona, his disregard of the court's orders, and his failure to follow the court's rules.
The pro hac vice lapse was not Kimm's first ethical issue in Arizona. In a February 8, 2007 order, the superior court acknowledged that Kimm may have improperly contacted defendant Jeon in violation of the Arizona Rules of Professional Conduct. Ariz. R. Sup. Ct. 42, ER 4.2. The judge decided at the time that dismissal was a "sanction that is too stringent" and that the matter should be referred to the State Bar for disciplinary measures. --------
CONCLUSION
¶26 For the foregoing reasons, we affirm the dismissal for failure to prosecute and the revocation of Kimm's pro hac vice status.