The opinion of the court was delivered by: Wm. WILSON JR., District Judge
Pending are Plaintiffs' Motion for Declaratory Judgment (Doc.
No. 38), Motion to Amend Complaint (Doc. No. 40), and Second
Motion to Amend Complaint (Doc. No. 48). Defendant has filed a
Motion to Dismiss Plaintiffs' Complaint (Doc. No. 44).
For the reasons stated below, Plaintiffs' Motion for
Declaratory Judgment is GRANTED. Plaintiffs' Motion to Amend
Complaint and Second Motion to Amend Complaint are both DENIED.
Defendant's Motion to Dismiss is DENIED as moot. Plaintiffs most
recently filed Motion for Order Allowing Plaintiffs' Response to
Defendant's Opposition to Plaintiffs' Second Motion to Amend
Complaint (Doc. No. 56) is MOOT in light of Plaintiffs' filing
their response, regardless of permission (Doc. No. 57).
Defendant American Greetings Corporation ("Defendant" or
"American Greetings") is a foreign corporation organized under
the law of the state of Ohio and is qualified to do business in
the state of Arkansas. Defendant's principal place of business is
located in Osceola, Arkansas. In 2002, Defendant began dismissing a large group of its hourly
employees. Roughly 120 employees out of 1, 100 were dismissed.
Defendant maintains that the dismissals were a result of a
legitimate investigation of allegations by the Arkansas
Employment Security Division ("AESD") that Defendant's employees
improperly claimed unemployment compensation for time periods in
which they were working. Plaintiffs, former employees of
Defendant, allege that the investigation was a pretext a mask
for dismissals driven by illegal discrimination on the basis of
sex, race, and disability.
All of the original Plaintiffs to this action filed
administrative charges with the Equal Employment Opportunity
Commission ("EEOC") as required by Title VII. It is undisputed
that Plaintiffs identified in Groups II and III of their
Complaint filed their own individual charges with the EEOC,
alleging in those charges discriminatory discharge on the basis
of sex, race, age, and retaliation. It is also undisputed that
the EEOC issued a Dismissal and Right to Sue Letter to each
Plaintiff in Groups II and III.
In an April 27, 2005 Order, this Court dismissed the sex
discrimination claims of Group I Plaintiffs, Plaintiff Michael
Fletcher' Title VII claim, and the Title VII and ADEA claims of
all Group II and Group III Plaintiffs.
A. Declaratory Judgment and Motion to Dismiss
Plaintiffs' counsel, Mr. Larry Steele ("Steele"), has filed a
Motion for Declaratory Judgment asking for a determination that
Plaintiffs' Complaint is valid despite his being administratively
suspended when the original complaint was filed on August 31,
2004. Steele argues that his eventual payment of overdue fees
retroactively reinstated his license, effectively validating any
legal work (including the present Complaint) performed during the
suspension. Defense counsel responded that the Complaint and all
other filings represent acts of the unauthorized practice of law
and, are therefore, a nullity. Furthermore, Defendant argues that
any future filing of similar claims to be time-barred.
The annual Arkansas law license renewal fee is due and payable
no later than March 1 of each year. If an Arkansas attorney does
not timely pay this fee, his Arkansas law license is
automatically administratively suspended until such time as the
annual fee, $175, plus a late fee is paid. Before January 27,
2005, Plaintiffs' counsel, Mr. Larry Steele ("Steele"), last paid
his annual license fee on May 2, 2003. Steele's law license was
automatically suspended on March 2, 2004, due to nonpayment.
Steele's license was reinstated on January 27, 2005, when he paid
a total of $435.00 for the years 2004 and 2005.
The "[r]ight to practice law is a privilege granted by the
state"*fn2 and governed by the Arkansas Supreme
Court.*fn3 Since the pertinent Federal Rule refers to the
"face of the record upon which the discipline in another
jurisdiction is predicated," this Court must first review the
Consent Findings and Order*fn4 ("Consent Findings") made by
the Arkansas Supreme Court Committee on Professional Conduct,
Panel B. In the Consent Findings, the Committee explicitly stated
that while a law license is suspended, the attorney is not
eligible to practice law in Arkansas. Nevertheless, after
reviewing the fact that Steele had handled at least two appeals
before the Arkansas Court of Appeals and one case the Eastern District of Arkansas while his
license was suspended,*fn5 the Committee did not take any
further action. Despite the finding that Steele violated Rules
3.4(c), 5.5(a), and 8.4(d) of the Arkansas Model Rules of
Professional Conduct, denying his clients "the services of an
attorney in good standing and potentially jeopardizing their
cases," the Committee opted to simply caution Steele.
Rule II of the Model Federal Rules of Disciplinary Enforcement
(the "Federal Rules") requires that an attorney disciplined by
another court must show cause why he should not receive the
identical discipline in federal court. The identical discipline
is to be imposed:
unless the respondent/attorney demonstrates, or this
Court finds, that upon the face of the record upon
which the discipline in another jurisdiction is
predicated it clearly appears:
1. That the procedure was so lacking in notice or
opportunity to be heard as to constitute a
deprivation of due process; or
2. That there was such an infirmity of proof
establishing the misconduct as to give rise to the
clear conviction that this Court could not,
consistent with its duty, accept as final conclusion
on that subject; or
3. That the imposition of the same discipline by this
Court would result in grave injustice; or
4. That the misconduct established is deemed by this
Court to warrant substantially different
Steele received a caution nothing more. Why should this Court
do more than the Arkansas Committee of Professional Conduct would
do? In light of such a finding, I am not inclined and will not
nullify an entire case that involves numerous Plaintiffs and one
which has been pending for well over a year now, simply because of nonpayment of a state
licensing fee. Moreover, the cases cited by Defendant involved
or attorneys licensed in other
jurisdictions acting in violation of local pro hac vice
and, therefore, do not apply.
Steele is a lawyer in good standing and one that has met the
requirements to practice law not only in Arkansas but also in
federal court. Accordingly, Plaintiffs' Motion for Declaratory
Judgment that the Complaint and any later filings are valid
despite Steele's suspended license at the time of filing is
GRANTED. In light of this ...