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BELL v. AMERICAN GREETINGS CORP.

January 10, 2006.

ANDREW BELL, ET AL. PLAINTIFFS
v.
AMERICAN GREETINGS CORP. DEFENDANT.



The opinion of the court was delivered by: Wm. WILSON JR., District Judge

ORDER

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).

  I. History*fn1

  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.

  II. Analysis

  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 discipline.*fn6
  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 either non-attorneys*fn7 or attorneys licensed in other jurisdictions acting in violation of local pro hac vice regulations*fn8 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 ...


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