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 ERIC
P. Watters, United States District Judge.
22, 2019, Shalise C. Zobell, a member of the Montana Bar,
filed a motion for the admission of Eric D. Hone, 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 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.)
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
Mr. Hone to appear pro hac vice, the Defendant
objected to the motion and responded that Mr. Hone was a
necessary witness regarding the cease and desist letter and
the Defendant's counterclaim of tortious interference,
disqualifying him from representing the Plaintiffs under M.R.
Pro. C. 3.7. (Doc. 21.)
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 he will
likely be a necessary witness at trial precludes him 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
Mr. Hone leave to appear pro hac vice but left
unanswered the question of whether Mr. Hone 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 Mr. Hone leave to
appear pro hac vice in part on whether Mr. Hone is
disqualified under M.R. Pro. C. 3.7 because he is likely to
be a necessary witness at trial. The Court concludes he 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 All. 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
him, 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 Mr. Hone as a witness for the
Defendant's counterclaim of tortious interference,
thereby disqualifying him. The Defendant states
communications between Mr. Hone and the Dakota Dog Company
support the Defendant's allegation that the Plaintiffs
tortiously interfered with the Defendant's business
relations. The Defendant argues, "The full scope and
nature of Mr. Hone's conduct is obtainable only from Mr.
Hone." However, the Defendant cites only the cease and
desist letter Mr. Hone sent as evidence of the
cease and desist letter speaks for itself, and the Defendant
could authenticate the letter through the testimony of other
witnesses. Where Mr. Hone's testimony would relate to the
contents of the letter, the Defendant has not shown how the
evidence cannot be obtained elsewhere-for example, by
admitting the letter into evidence. Where Mr. Hone's
testimony would relate to his mental thoughts, impressions,
strategy, or opinions when writing the letter, the Defendant
has not shown how that testimony is admissible under the
attorney-client and work product privileges.
the Defendant fails to further specify why Mr. Hone is likely
to be a necessary witness, either by pointing to further
instances of communications between Mr. Hone and Dakota Dog
Company or other conduct that would necessitate Mr.
Hone's testimony. The Defendant does not specify how Mr.
Hone's testimony would be admissible-the Plaintiffs argue
any testimony as to Mr. Hone's communications with his
clients; his mental thoughts, impressions, strategy, or
opinions; and his 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 Mr.
Hone's testimony is admissible, unavailable by other
means, and material to the determination of the issues
Defendant also cites Nelson v. Hartford, 2012 WL
761965 (D. Mont. March 8, 2012) and Pumphrey v.
CinncinattiIns. Co., No. CV- 05-14-BLG-CSO (D. Mont.
March 9, 2007) in support of his argument that Mr. Hone
is disqualifiable and therefore should be prevented from
appearing pro hac vice. Each case is
distinguishable. Both were bad faith insurance actions where
a key issue was the representation of the insured in the
underlying suit, including the attorneys'
"litigation and negotiation strategy" and their
testimony about alleged misconduct that was "material,
relevant, and unobtainable elsewhere." Nelson,
at *5-6; accordPumphrey, at 3-4. The present case is
not a bad faith insurance action. The Defendant has not
articulated how Mr. Hone's testimony regarding the cease
and desist letter is admissible under the attorney client and
work product privileges and how it is "material,
relevant, and unobtainable elsewhere." See
Nelson, at *5.
Court finds the Defendant has failed to carry his burden of
showing Mr. Hone is likely to be a necessary witness at trial
under M.R. Pro. C. 3.7. Mr. Hone 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 Eric D. Hone is ...