Perjury in Federal Court: It’s Not What You Do, Write or Say – It’s Which Outlaw You Know

Stolfat v. Equifax Information Services, LLC.

(9:19-cv-80428)

District Court, S.D. Florida

MAR 26, 2019 | REPUBLISHED BY LIT: MAR 13, 2022

I. Plaintiff’s Motion

Plaintiff, who is representing herself pro se in this matter, is seeking to “revoke Pro Hac Vice and disqualify out-of-state counsel Michael Merar” and “disqualify local counsel Alexandra L. Tifford, Esquire.” [DE 20, p. 1]. According to Plaintiff, Mr. Merar contacted her by email on April 29, 2019, May 1, 2019, May 6, 2019, May 8, 2019, and May 9, 2019, but local counsel, Ms. Tifford, did not file a motion to appear pro hac vice on behalf of Mr. Merar until late in the day on May 9, 2019. Id. at pp. 2-6. Plaintiff asserts that Mr. Merar represented Defendant before moving for pro hac vice admission and improperly used “intimidation techniques” with Plaintiff. Id. at p. 5. Finally, Plaintiff accuses Ms. Tifford of aiding Mr. Merar in the unauthorized practice of law. Id. at p. 6. Plaintiff requests that the Court disqualify both attorneys, revoke Mr. Merar’s pro hac vice admission in this District, and refer the matter to the Grievance Committee of the Florida Bar. Id. at pp. 6-7.

II. Defendant’s Response

In response, Defendant argues that it submitted its motion for Mr. Merar to appear pro hac vice a mere nine days after Defendant filed its Answer and Defenses to the Complaint. [DE 25, p. 1]. Defendant contends that the Court lacks jurisdiction over grievances regarding the unauthorized practice of law and also lacks jurisdiction to refer this matter to the Florida Bar. Id. at pp. 2-3. Next, Defendant argues that Mr. Merar’s conduct in this case at all times complied with Rule 4-5.5 of the Rules Regulating the Florida Bar. Id. at pp. 3-4. Defendant also asserts that disqualification is drastic and inappropriate given the facts in this case. Id. at pp. 4-5. According to Defendant, there is also no basis to revoke Mr. Merar’s pro hac vice admission when Mr. Merar has not violated any Rule of Professional Conduct or Local Rule. Id. at pp. 6-7. Finally, Defendant maintains that Plaintiff’s Motion is procedurally deficient for multiple reasons. Id. at pp. 7-8.

Attached to Defendant’s Response are the Declaration of Alexandra L. Tifford [DE 25-1] and the Declaration of Michael Merar [DE 25-2].

III. Plaintiff’s Motion is Without Merit

The Court has carefully reviewed the Motion, Response, various attachments, and the entire docket in this case. The relevant facts are as follows.

Alexandra Tifford, Esq., is an attorney at the law firm of Fowler White Burnett in the Miami office. [DE 25-1, ¶ 2], She is licensed to practice law in the State of Florida, and she is admitted to practice in the Southern District of Florida. Id. at ¶3. Michael Merar, Esq. is an attorney at the law firm of Quilling, Selander, Lownds, Winslett & Moser, P.C., in the Piano, Texas office. [DE 25-2, ¶ 2]. He is licensed to practice law in the State of Texas and the State of Georgia, and he is admitted to practice in the United States District Courts for the Northern, Southern Eastern, and Western Districts of Texas, as well as the Northern and Middle Districts of Georgia. Id. at ¶ 3.

Mr. Merar first contacted the pro se Plaintiff via email on April 29, 2019, and Ms. Tifford submitted the motion for pro hac vice admission on May 9, 2019. [DE 25-2, ¶¶ 5-6; DE 25-1, ¶ 7; DE 14]. Before Mr. Merar was admitted to practice in this District pro hac vice on May 10, 2019, Ms. Tifford “diligently reviewed, signed, and filed all pleadings entered by Trans Union in this case.” [DE 25-1 at ¶ 7; DE 25-1 at ¶ 6; 15]. Defendant’s Answer and Affirmative Defenses [DE 12], which was filed before Mr. Merar was admitted pro hac vice, is solely signed by Defendant’s local counsel, Alexandra Tifford and Christopher Knight.

Based on these facts, there is no evidence of unauthorized practice of law and there are no grounds to disqualify Defendant’s counsel or revoke Mr. Merar’s pro hac vice admission in this District. Plaintiff’s Motion is baseless. Neither Mr. Merar nor Ms. Tifford violated the Southern District of Florida Local Rules or the Rules Regulating the Florida Bar. There was simply a short lag of approximately 11 days between Mr. Merar contacting Plaintiff and being admitted pro hac vice, during which period of time Defendant’s local counsel, who is admitted in this District, filed an Answer and Affirmative Defenses. This does not amount to a rule violation of the unauthorized practice of law. Further, no “intimidation techniques” were utilized by defense counsel as claimed by Plaintiff. In sum, Plaintiff’s Motion is due to be denied because it is not supported by the law or the facts.

In fact, in more egregious circumstances, a court in this District retroactively granted pro hac vice admission after an attorney who was not admitted to this District filed an Amended Complaint. Findling v. Bisaria, No. 12-CV-80118-DMM, 2012 WL 3835079, at *3 (S.D. Fla. Sept. 4, 2012). The court noted that “a district court may use its discretion in determining whether to allow a non-lawyer to appear in court.” Id.

IV. Defendant’s Response to the Motion Is , in Part, Frivolous

While Plaintiff’s Motion is without merit and is due to be denied, the Court finds it necessary to specifically comment on portions of Defendant’s Response as well. The Court agrees with Defendant that disqualification and revocation of pro hac vice admission are improper here based upon the argument and facts presented by Plaintiff; however, some of the arguments made by Defendant’s counsel in Defendant’s Response are frankly startling, and are so frivolous and misleading that the Court will take the time to address them here.

First, Defendant argues that this Court “lacks jurisdiction to hear matters regarding the unauthorized practice of law.” [DE 25, p. 2]. This is a wholly frivolous argument. This case is in federal court. Under Local Rule 11.1(c),

The standards of professional conduct of members of the Bar of this Court shall include the current Rules Regulating the Florida Bar. For a violation of any of these canons in connection with any matter pending before this Court, an attorney may be subjected to appropriate disciplinary action. S.D. Fla. L.R. 11.1(c).

In other words, the Florida Bar Rules are incorporated into the Local Rules of this Court. Any unlicensed practice of law before this Court can be dealt with by this Court by way of contempt, sanctions, or referral to the Florida Bar and/or to this District’s Committee on Attorney Admissions, Peer Review and Attorney Grievance pursuant to Rule 6 of the Southern District of Florida Rules Governing the Admission, Practice, Peer Review, and Discipline of Attorneys. Had Defendant’s counsel taken the time to read the Court’s Local Rules, they would not have made this frivolous argument.

Second, Defendant’s counsel improperly relies on two federal cases in support of its argument that this Court lacks jurisdiction to hear matters regarding the unauthorized practice of law: In re Losee, 195 B.R. 785 (M.D. Fla. Bankr. 1996), and Gonczi v. Countrywide Home Loans, Inc., No. 06-61597-CIV-Altonaga/Turnoff, 2007 WL 9700997 (S.D. Fla. Feb. 2, 2007). The Gonczi case is not at all on point.

While the court did state in Gonczi that “only the state bar has the authorization to determine whether conduct constitutes unauthorized practice of law”, this statement was in the context of a defendant’s motion to dismiss a complaint by a private litigant explicitly alleging the unauthorized practice of law as a cause of action against Defendant. 2007 WL 97000997, at *1. Defendant’s citation to case law about the legal validity of a civil claim for the unauthorized practice of law is completely irrelevant to the case at hand. Next, the Losee court did state that whether or not an attorney “is guilty of unauthorized practice of law is a question which must be resolved by the Supreme Court of this State upon the recommendation of the Florida Bar and not by this Court.” 195 B.R. at 786. However, in the very next sentence, the court stated that “[t]his conclusion should not be interpreted to mean that this Court lacks the power to refer the matter to the Florida Bar for investigation if it appears that a person might have engaged in the unauthorized practice of law before this Court.” Id. The Losee case, therefore, actually contradicts Defendant’s argument made later in its Response [DE 25, p. 3] that this Court lacks jurisdiction to refer this matter to the Florida Bar even if sufficient grounds exist.

Defendant also cites Florida state cases which are completely irrelevant as they involve whether entities and individuals other than the Florida Bar can “prosecute” claims for the unauthorized practice of law and whether the “Florida Supreme Court’s jurisdiction to prevent the unauthorized practice was ‘exclusive’ vis-à-vis other state courts.” State v. Palmer, 791 So. 2d 1181, 1185 (Fla. Dist. Ct. App. 2001). Nowhere do these cases state that a federal court has no jurisdiction to determine whether an attorney has engaged in the unauthorized practice of law before a federal court. ——–

Further, and quite important to this Court, Defendant failed to disclose that several federal courts, including courts in this District, have, in fact, made findings regarding an attorney’s unauthorized practice of law, contrary to Defendant’s citation to Losee.

See Principal Life Ins. Co. v. Meyer, No. 09-20244-CIV, 2010 WL 744578 (S.D. Fla. Mar. 2, 2010)

(requiring an attorney to show cause why the court should not refer the attorney’s unauthorized practice of law to the State Attorney’s Office or take further action);

Shell v. U.S. Dep’t of Hous. & Urban Dev., No. 08-60589-CIV, 2008 WL 2637431 (S.D. Fla. July 3, 2008)

(noting in a footnote that the court can conduct a hearing on a motion for an order to show cause why an attorney should not be sanctioned for the unlicensed practice of law);

Adams v. BellSouth Telecommuncations, Inc., No. 96-2473-CIV, 2001 WL 34032759, at *2 (S.D. Fla. Jan. 29, 2001), dismissed sub nom.

Adams v. BellSouth Telecommunications, 45 F. App’x 876 (11th Cir. 2002)

(noting that the United States Magistrate Judge had held a hearing and had found that an attorney had violated the Florida Bar Rules prohibiting the unauthorized practice of law, but imposing no sanctions because none were recommended);

Benjamin v. Airborne Sec. & Prot. Servs., Inc., No. 12-61624-CIV, 2012 WL 12886185 (S.D. Fla. Dec. 18, 2012)

(noting that an attorney’s representation of a corporate party bordered on the unlicensed practice of law);

In re Calzadilla, 151 B.R. 622 (Bankr. S.D. Fla. 1993)

(enjoining two attorneys and their law firm from engaging in the unauthorized practice of law);

In re Bachmann, 113 B.R. 769 (Bankr. S.D. Fla. 1990)

(contemplating holding an attorney in contempt, but instead permanently enjoining and restraining the attorney from engaging in the unauthorized practice of law);

In re Bagdade, 334 F.3d 568 (7th Cir. 2003)

(holding attorney in civil contempt for engaging in the unauthorized practice of law, making false representations to the court, and testifying falsely under oath).

Therefore, Defendant’s Response cites a case, Gonczi, which had nothing to do with the facts of this case and then cites a bankruptcy case, Losee, without advising the Court of additional authority which did not support Defendant’s position, and then taking a position, addressed further below, directly rejected by Losee.

In this regard, Defendant further improperly argues in its Response to the Motion that this Court lacks jurisdiction to refer this matter to The Florida Bar “even if sufficient grounds existed.”

[DE 25, p. 3].

This argument is completely frivolous.

Courts in this District regularly refer attorney’s misconduct to the Florida Bar.

See, e.g., Elam v. Bank of New York Mellon, 589 B.R. 431, 438 (S.D. Fla. 2018);

Abrams-Jackson v. Avossa , 282 F. Supp. 3d 1268, 1271 (S.D. Fla. 2017);

Parish-Carter v. Avossa , No. 9:16-CV-81623, 2017 WL 4355835, at *4 (S.D. Fla. Oct. 2, 2017), aff’d, 760 F. App’x 865 (11th Cir. 2019);

Jallali v. USA Funds, No. 11-62510-CIV, 2013 WL 12080743, at *1 (S.D. Fla. Oct. 30, 2013);

Nardolilli v. Bank of Am. Corp., No. 12-81312-CIV, 2013 WL 12154544, at *1 (S.D. Fla. Sept. 24, 2013);

United States v. Coulton, No. 07-CR-60172-LENARD, 2013 WL 12086298, at *18 (S.D. Fla. Feb. 1, 2013), report and recommendation adopted, No. 07-60172-CR, 2013 WL 12086299 (S.D. Fla. May 10, 2013), aff’d and remanded, 594 F. App’x 563 (11th Cir. 2014).

Just as any client or attorney can file a grievance against an attorney licensed by the Florida Bar, a federal judge, whether a District Judge or a Magistrate Judge, also can refer a matter to the Florida Bar.

Moreover, this Court can also refer an attorney to its own Committee on Attorney Admissions, Peer Review and Attorney Grievance pursuant to Rule 6 of the Southern District of Florida Rules Governing the Admission, Practice, Peer Review, and Discipline of Attorneys. The Court is simply confounded as to why defense counsel chose to make these arguments to this Court.

Due to the improper arguments contained in Defendant’s Response [DE 25, pp. 2-3], the Court has had to expend additional scarce judicial resources in resolving this matter.

The Response is electronically signed by Alexandra L. Tifford, Esq., on her own behalf and on behalf of Christopher E. Knight, Esq., and Michael Meran, Esq.

Accordingly, the Court directs those three counsel to show cause, on or before June 24, 2019, why such frivolous, improper, and misleading argument and citation to case law were presented to this Court, as well as why defense counsel failed to advise the Court of case law which directly contradicts Defendant’s untenable argument.

Further, defense counsel shall address why sanctions should not be imposed against all such counsel or any of them in light of the arguments made by defense counsel at DE 25, pp. 2-3. Upon receipt of Defendant’s counsels’ Response, the Court will determine what sanctions, if any, should be imposed against any defense counsel in this case.

Upon careful review of the motions and the entire docket in this case, it is hereby ORDERED as follows:

1. Plaintiff’s “Motion to Disqualify Defendant [sic] Counsels [sic] and Motion to Revoke the Pro Hac Vice Admission of Defendant [sic] Counsel” (“Motion”) [DE 20] is DENIED. Mr. Merar and Ms. Tifford, as well as their law firms, are permitted to continue to represent Defendant in this matter at this time.

2. Defendant’s counsel, Ms. Tifford, Mr. Knight, and Mr. Meran, shall show cause on or before June 24, 2019, why such arguments were made as discussed above and why sanctions should not be imposed upon all or any such counsel due to the improper, inaccurate, and misleading arguments contained in Defendant’s Response [DE 25, pp. 2-3].

3. The Clerk of Court is DIRECTED to mail a copy of this Order to Jelena Stolfat, Apt. 103, 265 Courtney Lakes Circle, West Palm Beach, Florida 33401.
DONE and ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, this 14th day of June, 2019.

/s/_________
WILLIAM MATTHEWMAN
UNITED STATES MAGISTRATE JUDGE

DEFENSE COUNSEL’S RESPONSE TO THE COURT’S JUNE 14, 2019 ORDER TO SHOW CAUSE

Pro Hac Vice Counsel, Michael A. Merar (“Mr. Merar”) of Quilling, Selander, Lownds, Winslett & Moser, P.C., and Local Counsel, Christopher E. Knight (“Mr. Knight”) and Alexandra L. Tifford (“Ms. Tifford”) of Fowler White Burnet, P.A., (hereinafter collectively referred to as “Defense Counsel”) hereby respectfully respond to the Court’s June 14, 2019 Order to Show Cause and state as follows:

1. Defense Counsel sincerely apologize to this Court for its unnecessary expenditure of scare judicial resources caused by the Response in Opposition filed on behalf of Defendant Trans Union LLC [D.E. 25, pp. 2-3] to Plaintiff’s Motion to Disqualify Defense Counsel [D.E. 20]. Defense Counsel respectfully submit that they did not knowingly or recklessly pursue any frivolous arguments, and therefore, did not engage in the requisite bad faith conduct warranting the imposition of sanctions.

2. The Response in Opposition [D.E. 25] was prepared by Mr. Merar. While Ms. Tifford reviewed the Response, she did not conduct any independent research or make substantive changes. Mr. Knight, who is also Local Counsel of record, was not involved in the preparation or review of the Response.

3. Defense Counsel interpreted the issue presented to the Court to be whether the Florida Supreme Court is the ultimate arbiter of whether an attorney engaged in the unauthorized practice of law in the State of Florida. The Response in Opposition, including the related research, was based on that interpretation. Upon reading this Court’s June 14, 2019 Order, Defense Counsel now understand that interpretation was incorrect.

4. Defense Counsel acknowledge and appreciate the way in which the Court has distinguished Gonczi v. Countrywide Home Loans, Inc., No. 06-61597-CIA- ALTONAGA/Turnoff, 2007 WL 9700997 (S.D. Fla. Feb. 2, 2007), and In re Losee, 195 B.R. 785 (M.D. Fla. Bankr. 1996), and further acknowledge the interplay and incorporation of the Florida Bar Rules in this Court’s Local Rules. Defense Counsel recognize that it was incorrect to argue that this Court did not have jurisdiction to address the allegation regarding the unauthorized practice of law or refer the matter to the Florida Bar. Defense Counsel sincerely apologize for asserting those arguments.

5. Upon finding the Gonczi and Losee opinions, and the authorities cited therein, Mr.Merar believed that he had found the controlling authority on the unauthorized practice of law issue. Defense Counsel did not knowingly or recklessly fail to cite contrary authority to the Court. While the research was clearly incomplete and deficient, it was not done in bad faith and not done knowingly or recklessly. Such failure was not intended to mislead the Court or to subvert justice.

6. Defense Counsel sincerely apologize for making these arguments and for failing to cite contrary authority to the Court. While the briefing fell short of this Court’s standards and expectations, Defense Counsel will do better and make all efforts to not repeat such mistakes again. Defense Counsel state they have learned from their mistakes, and under the circumstances, sanctions should not be imposed based on the following authority.

7. The Eleventh Circuit has consistently “held that before a court can impose sanctions on an attorney under its inherent powers, it must make a finding of bad faith.” Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230, 1251 (11th Cir. 2007) (explaining that a court’s use of its inherent authority to sanction must be exercised with restraint and predicated on a finding of bad faith); see Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1320 (11th Cir. 2002) (“[B]efore a court can impose sanctions against a lawyer under its inherent power, it must find that the lawyer’s conduct ‘constituted or was tantamount to bad faith.’” (quoting Durrett v. Jenkins Brickyard, Inc., 678 F.2d 911, 918 (11th Cir. 1982))); In re Mroz, 65 F.3d 1567, 1575 (11th Cir. 1995); see also Roadway Express, Inc. v. Piper, 447 U.S. 752, 767, (1980) (noting that “[a] specific finding as to whether counsel’s conduct in this case constituted or was tantamount to bad faith … would have to precede any sanction under the court’s inherent powers”).

8. Stated differently, the invocation of a court’s inherent power requires a finding of bad faith.1 See Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d 1218, 1223 (11th Cir. 2017) (“The key to unlocking a court’s inherent power is a finding of bad faith.”; “Furthermore, recklessness alone does not constitute conduct tantamount to bad faith.”); Amlong, 500 F.3d at 1251 (“[B]efore a court can impose sanctions on an attorney under its inherent powers, it must make a finding of bad faith.”); Lee v. Am. Eagle Airlines, Inc., 93 F. Supp. 2d 1322, 1331 (S.D.1“Bad faith exists when the court finds that a fraud has been practiced upon it, or that the very temple of justice has been defiled, or where a party or attorney knowingly or recklessly raises a frivolous argument, delays or disrupts the litigation, or hampers the enforcement of a court order.” Brown Jordan Int’l, Inc. v. Carmicle, No. 0:14-CV-60629- Rosenberg/Brannon, 2016 WL 815827, at *35 (S.D. Fla. Mar. 2, 2016), aff’d, 846 F.3d 1167 (11th Cir. 2017) Fla. 2000) (“A finding that counsels’ conduct “constituted or was tantamount to bad faith” must precede any sanction levied pursuant to a court’s inherent powers.”).

9. “Negligent conduct alone is insufficient” to warrant sanctions. Oliva v. NBTY, Inc., 583 F. App’x 877, 881 (11th Cir. 2014). See also Chavez v. Hagen, No. 15-60816-CIV- Zloch, 2016 WL 6538403, at *1 (S.D. Fla. Mar. 30, 2016) (counsel’s response to Order to Show Cause “accepted full responsibility for the delay in transmitting the settlement agreement to the Court and provided a plausible reason why he did not respond to the Court’s orders in a timely fashion”); Adams v. Bellsouth Telecomms., Inc., No. 96–2473 CIV, 2000 WL 33941852, at *3 (S.D. Fla. Nov. 20, 2000) (court decided not to impose sanctions against local counsel or her firm where court found that actions of local counsel did not amount to “bad faith” or “egregious conduct”; local counsel’s research “was far from comprehensive” and should have included ethical concerns; “To impose sanctions under these circumstances would be to “kill the messenger.”), report and recommendation adopted in part, 2001 WL 34032759 (S.D. Fla. Jan. 29, 2001), rev. dismissed, 45 F.. App’x 876 (11th Cir. 2002).

10. Defense Counsel submit that they have acted in good faith throughout the duration of this case. None of the arguments in the Response in Opposition were raised with any knowledge that they were frivolous or in reckless disregard of their accuracy. In other words, Defense Counsel did not act in bad faith, as required for the imposition of sanctions.

11. Additionally, Defense Counsel have diligently filed all necessary documents and pleadings, and otherwise maintained compliance with all orders and standards of practice in these proceedings.

12. Defense Counsel have never been the subject of court-imposed sanctions or other disciplinary action. Since the entry of the Court’s June 14, 2019 Order, Defense Counsel have again reviewed the Rules Regulating the Florida Bar and this Court’s Local Rules.

WHEREFORE, Pro Hac Vice Counsel, Michael A. Merar, and Local Counsel, Christopher E. Knight and Alexandra L. Tifford, respectfully submit that the Court should not impose any sanctions against them for the foregoing reasons.

Respectfully submitted,

s/Christopher E. Knight

Christopher E. Knight
Florida Bar No. 607363

s/Alexandra L. Tifford

Alexandra L. Tifford
Florida Bar No. 178624
Fowler White Burnett, P.A.
Espirito Santo Plaza
1395 Brickell Avenue,
14th Floor Miami,
Florida 33131
Telephone: (305) 789-9200
Facsimile: (305) 728-7510
cknight@fowler-white.com
atifford@fowler-white.com

and
s/Michael Merar
Michael Merar,

Admitted Pro Hac Vice
Texas Bar No. 24103878
Georgia Bar No. 966038
Quilling, Selander, Lownds, Winslett & Moser, P.C.
6900 N. Dallas Parkway, Suite 800
Plano, TX 75024
Telephone: (214) 560-5443
Facsimile: (214) 871-2111
mmerar@qslwm.com

COUNSEL FOR TRANS UNION LLC

CERTIFICATE OF SERVICE

I hereby certify that on the 21st day of June 2019, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will then send a notification of such to the following counsel of record:

Erika Stephanie Whyte
ewhyte@jonesday.com
Jones Day
600 Brickell Avenue, Suite 3300
Miami, FL 33131
(305) 714-9700
(305) 714-9799 Fax
Counsel for Experian Information Solutions, Inc.

John Anthony Love
tlove@kslaw.com
King & Spalding
1180 Peachtree St.
NE Atlanta, GA 30309
(404) 572-4600

Counsel for Equifax Information Services, LLC

I further certify that I forwarded a copy of the foregoing by U.S. First Class Mail to the following non-CM/ECF participants:

Jelena Stolfat
265 Courtney Lakes Drive, Apt. 103
West Palm Beach, FL 33401
(561) 313-1131
Pro Se Plaintiff

s/Alexandra L. Tifford
ALEXANDRA L. TIFFORD