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David Opalinksi, and James Mccabe, Individually and On Behalf v. Robert Half International Inc. and Robert Half Corporation

March 18, 2011


The opinion of the court was delivered by: Wigenton, District Judge.


Before the Court is Defendants Robert Half International Inc., and Robert Half Corporation‟s (collectively "Defendants") appeal from Magistrate Judge Madeline C. Arleo‟s Order granting Massachusetts attorney Shannon Liss-Riordan‟s ("Liss-Riordan") application for pro hac vice admission to this Court. This appeal is decided without oral argument pursuant to Fed. R. Civ. P. 78. For the reasons stated below, Judge Arleo‟s Order granting the pro hac vice admission of Liss-Riordan is AFFIRMED.


Plaintiffs David Opalinksi ("Opalinksi") and James McCabe ("McCable") are Defendants‟ former employees. On April 23, 2010, Opalinski and McCabe, on behalf of themselves and other individuals "who have performed duties as "staffing managers‟ for Defendants" (collectively "Plaintiffs") initiated this action alleging that Defendants violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., by failing to pay them overtime. (Compl. ¶ 1.) On October 14, 2010, Plaintiffs filed a motion for pro hac vice admission of Liss-Riordan. 1 (Docket Entry No. 30.) Defendants opposed the motion. On that same day, Magistrate Judge Arleo granted Plaintiffs‟ motion. On November 1, 2010, Defendants appealed the October 14 Order. (Docket Entry No. 32.) Essential to this appeal is Liss-Riordan‟s involvement in a prior action against Defendants in Massachusetts, O‟Donnell v. Robert Half Int‟l, Inc., 1:04-cv-12719 (D. Mass.) (the "O‟Donnell action").

The O'Donnell Action Liss-Riordan and her firm, Lichten & Liss-Riordan, P.C., ("Lichten") represented the plaintiffs in the O‟Donnell action. The law firm of Seyfarth Shaw LLP ("Seyfarth") represented Defendants. Similar to the present case, the plaintiffs in the O‟Donnell action asserted claims under the Fair Labor Standards Act. O‟Donnell v. Robert Half Int‟l, Inc., 641 F. Supp. 2d 84, 85 (D. Mass. 2009).

On June 3, 2009, Seyfarth filed a motion to disqualify Lichten under Rule 1.10 of the Massachusetts Rules of Professional Conduct. The basis of Seyfarth‟s motion was that Lichthen hired a former associate, Sarah Getchell ("Getchell"), of Seyfarth. Id. Getchell graduated from law school in 2008 and worked at Seyfarth for about eight months. During Getchell‟s tenure at Seyfarth she billed 7.2 hours on the O‟Donnell action. However, Getchell testified that "she had absolutely no memory of ever having worked on the instant case or of having received information about this case while at the Seyfarth firm." Id. at 87. Additionally, while employed at Lichten, Getchell was screened from the O‟Donnell action. Nonetheless, the court found that although Getchell did not have a "substantial involvement" in the O‟Donnell action, she received "substantial material information." Id. (internal quotations omitted). Consequently, Lichten was disqualified from the case. Id. at 91. In September 2009, Getchell ceased working at Lichten. O‟Donnell v. Robert Half Int‟l, Inc., 724 F. Supp. 2d 217, 219 (D. Mass. 2010)

On January 6, 2010, the District Court affirmed Lichten‟s disqualification, (Defs.‟ Ex. B at 3); thereafter, the case settled. O‟Donnell, 724 F. Supp. 2d at 219. However, the court denied Defendants‟ motion under the All Writs Act, 28 U.S.C. § 1651(a) seeking to enjoin Lichten from representing or providing legal advice to any party or attorney regarding potential or actual assertion of claims against defendants [Half] or any related entities, relating to hours of work or payment of wages, including without limitation exemption from overtime requirements, in any judicial, administrative, or arbitral forum, including without limitation representation of the plaintiffs in [the New Jersey case], until such time as the enjoined parties may come forward and show good cause why the injunction should no longer apply.

Id. at 219-20, 223. Defendants appealed the district court‟s decision to the First Circuit. On February 22, 2011, the First Circuit affirmed the district court‟s decision. The First Circuit noted that the matter before it was "independent of the issue before the New Jersey court" and that "the disqualification order that defendants seek to enforce was very explicitly limited to this case and, as such, the Court need not impose that ruling on the New Jersey Court in order to effectuate it." Moore v. Robert Half Int‟l Inc., No. 10-1809, slip op. at 2 (1st Cir. Feb. 22, 2011).


Pursuant to Fed. R. Civ. P. 72(a) and L. Civ. R. 72.1(c)(1)(A), a magistrate judge‟s disposition on a non-dispositive motion may be modified or set aside if the ruling was "clearly erroneous or [] contrary to law." See also 28 U.S.C. § 636(b)(1)(A); Haines v. Liggett Grp. Inc., 975 F.2d 81, 91 (3d Cir. 1992). A ruling is clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Dome Petroleum Ltd. v. Emp‟rs Mut. Liab. Ins. Co., 131 F.R.D. 63, 65 (D.N.J. 1990) (quoting United States v. Gypsum Co., 333 U.S. 364, 395 (1948)) (internal quotations omitted). "A district judge‟s simple disagreement with the magistrate judge‟s findings is insufficient to meet the clearly erroneous standard of review." Andrews v. Goodyear Tire & Rubber Co., Inc., 191 F.R.D. 59, 68 (D.N.J. 2000). On the other hand, an order is contrary to law "when the magistrate judge has misinterpreted or misapplied the applicable law." Doe v. Hartford Life & Accident Ins. Co., 237 F.R.D. 545, 548 (D.N.J. 2006).


Defendants maintain that Magistrate Judge Arleo erred because (1) the Order was based mainly on the New Jersey Rules of Professional Conduct, and (2) Liss-Riordan should be disqualified from this action.*fn1

1.Standard for Pro Hac Vice Admission

"There is no uniform standard for pro hac vice admission in United States District Courts. District courts therefore mainly rely on state bar admission in determining whether to admit an attorney pro hac vice." Kohlmayer v. Nat‟l R.R. Passenger Corp., 124 F. Supp. 2d 877, 879 (D.N.J. 2000) (citing In re Dreier, 258 F.2d 68 (3d Cir. 1958)). Generally, "a liberal approach is taken by federal courts in all jurisdictions in allowing out-of-state attorneys to practice in federal courts of jurisdictions where they are not admitted to the bar," and "this district is not ...

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