United States District Court, D. Montana, Billings Division
JENNIFER TIPTON and SLEEKEZ, LLC, a Wyoming limited liability company, Plaintiffs,
HAL HORTON, Defendant.
ORDER GRANTING MOTION TO APPEAR PRO HAC VICE FOR
MOOREA L. KATZ
P. WATTERS United States District Judge.
22, 2019, Shalise C. Zobell, a member of the Montana Bar,
filed a motion for the admission of Moorea L. Katz, a member
of the Nevada Bar, to appear pro hac vice as counsel
for Plaintiffs Jennifer Tipton and SleekEZ. On June 5, 2019,
Defendant Hal Horton objected and responded to the motion,
and on June 17, 2019, the Plaintiffs filed their reply. For
the following reasons, the Court grants the motion.
Hone, another attorney from Ms. Katz's law firm, served
as counsel for the Plaintiffs in two prior related
proceedings against the Defendant that the parties resolved
through a settlement agreement. (Doc. 2 at ¶¶
18-23.) As part of the agreement, the Defendant received a
license from the Plaintiffs to manufacture and sell certain
animal grooming brushes. (Doc. 2 at ¶ 26.) Around
November 2018, the Plaintiffs allege they discovered a third
party-Dakota Dog Company-was selling identical products
through a sublicense with the Defendant that violated the
parties' settlement agreement and the Plaintiffs'
patent for the animal grooming brushes. (Doc. 2 at
¶¶ 49-50.) Mr. Hone subsequently sent a cease and
desist letter to Dakota Dog Company. (Doc. 10-2.) The
Plaintiffs state Ms. Katz never contacted Dakota Dog Company
or any of the Defendant's other business relations. (Doc.
24 at 4.)
March 2019, Plaintiffs filed a complaint alleging, among
other claims, the Defendant breached the parties'
settlement agreement. Along with his answer, the Defendant
filed a counterclaim alleging tortious interference with
business relations. (Doc. 10 at ¶¶ 12-18.) The
Defendant cited the cease and desist letter Mr. Hone sent to
Dakota Dog Company as evidence of the counterclaim. (Doc. 10
¶ 13.) When Ms. Zobell later moved for the admission of
Ms. Katz to appear pro hac vice, the Defendant
objected to the motion and speculated that Ms. Katz was a
necessary witness for trial because she may have communicated
with Dakota Dog Company or other businesses that worked with
the Defendant, disqualifying her from representing the
Plaintiffs under M.R. Pro. C. 3.7. (Doc. 20.)
attorney who wishes to appear pro hac vice must
follow the procedure outlined in Dist. Mont. L. R. 83.1(d).
The rule says nothing regarding M.R. Pro. C. 3.7 and whether
an attorney's potential disqualification because she will
likely be a necessary witness at trial precludes her from
admission to appear pro hac vice. However, leave to
appear pro hac vice "is granted solely at the
discretion of the presiding judge." If the Court granted
Ms. Katz leave to appear pro hac vice but left
unanswered the question of whether Ms. Katz is disqualified
under M.R. Pro. C. 3.7, that decision would only serve to
prolong the instant litigation. Therefore, the Court will
base its decision of whether to grant Ms. Katz leave to
appear pro hac vice in part on whether Ms. Katz is
disqualified under M.R. Pro. C. 3.7 because she is likely to
be a necessary witness at trial. The Court concludes she is
part, M.R. Pro. C. 3.7 states, "A lawyer shall not act
as advocate at a trial in which the lawyer is likely to be a
necessary witness . ..." A necessary witness is
one whose "testimony is both admissible and unavailable
by other means." In re Marriage of Perry, 293
P.3d 170, 178 (Mont. 2013). "Because Rule 3.7 can be
'invoked for tactical advantage, delay or other improper
purposes,' the movant must make the showing that an
attorney is likely to be a necessary witness 'with
specificity.'" Newman v. Farmers AIL Mut. Ins.
Co., 2017 WL 3446630, *2 (D. Mont. Aug. 10, 2017)
(quoting Nelson v. Hartford Ins. Co. of the Midwest,
2012 WL 761965, *4 (D. Mont. Mar. 8, 2012)). "The moving
party bears the burden of showing disqualification is
necessary." Id. In cases where one party calls
an opposing party's attorney in an attempt to disqualify
her, the movant may also need to show the attorney will give
evidence material to the determination of the issues
litigated, the evidence cannot be obtained elsewhere, and the
testimony is prejudicial or may be potentially prejudicial to
the testifying attorney's client. Perry, 293
P.3d at 222 n. 4.
the Defendant would call on Ms. Katz as a witness for the
Defendant's counterclaim of tortious interference,
thereby disqualifying her. However, the Defendant cites only
the cease and desist letter Mr. Hone sent as evidence of Ms.
Katz's involvement with the alleged tortious
interference. The Defendant only speculates as to whether Ms.
Katz communicated with the business entities working with the
Defendant. The Plaintiffs affirm she did not.
Defendant fails to further specify why Ms. Katz is likely to
be a necessary witness. The Defendant does not specify how
Ms. Katz's testimony would be admissible-the Plaintiffs
argue any testimony as to Ms. Katz's communications with
her clients; her mental thoughts, impressions, strategy, or
opinions; and her work product is protected under the
attorney-client and work product privileges. Other than a
reference to the cease and desist letter, the Defendant fails
to specify how the evidence he would obtain through Ms.
Katz's testimony is admissible, unavailable by other
means, and material to the determination of the issues
Court finds the Defendant has failed to carry his burden of
showing Ms. Katz is likely to be a necessary witness at trial
under M.R. Pro. C. 3.7. Ms. Katz has met the remaining
requirements to appear pro hac vice pursuant to
Dist. Mont. L. R. 83.1(d). Accordingly, IT IS HEREBY
ORDERED that Plaintiffs' Motion for Admission
Pro Hac Vice of Moorea L. Katz is ...