Petition for Writ of Certiorari — McIlwain, LLC, aka Timothy J. McIlwain, Attorney at Law, Petitioner v. Hagens Berman Sobol Shapiro LLP

Supreme Court briefDec 16, 2021

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FILED

MCILWAIN LLC AND TIMOTHY J. MCILWAIN,

Petitioners,

DEC 1 6 2021

OFFICE OF THE CLEPK

HAGENS BERMAN SOBOL SHAPIRO, LLP,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Timothy J. McIlwain

Petitioner Pro Se

MCILWAIN LAW, LLC

2020 New Road, Suite A

Linwoqd, NJ 08221

(877) 375-9599

ATTORNEYMCILWAIN@ME .COM

Counsel for Petitioner

December 20,2021

SUPREME COURT PRESS

♦

(888) 958-5705

♦

Boston, Massachusetts

QUESTIONS PRESENTED

1. Did the court below err in not considering the

issue of whether the District Court had subject matter

jurisdiction to consider the sole special defense upon

which the court granted summary judgment?

2. Did the decision of the court below in affirming

the decision of the District Court granting summary

judgment conflict with this Court’s decision in.

141 S.Ct.

Transunion, LLC v. Ramirez,___U.S.

2190, 210 L.Ed.2d 568, 2021 WL 2599472 (June 25,

2021)?

3. Did the court below commit reversible error in

affirming the decision of the District Court to revoke

Plaintiff s pro hac vice appearance?

4. Did the court below err by refusing to consider

Plaintiffs argument that he should have been permitted

to appear pro se on behalf of his limited liability com

pany.

5. Should this court reconsider its holdings in

Osborn v. Bank of the United States, 9 Wheat. 738, 22

U.S. 738, 6 L.Ed 204 (1824); and Rowland v. Men’s

Colony, Unit IIMen’s Advisory Council, 506 U.S. 194,

113 S.Ct. 716,121 L.Ed 2nd 756 (1993) to the extent the

decisions’ prohibition of single owner, single employee,

limited liability corporations from appearing in feder

al courts except through licensed attorneys, violates

the due process clause, and equal protection component

of the Fifth Amendment to the U.S. Constitution?

PARTIES TO THE PROCEEDINGS

Petitioners

Mcllwain LLC

•

Timothy J. Mcllwain

Respondent

•

Hagens Berman Sobol Shapiro, LLP

Parties Dismissed in District Court

The parties below were dismissed from the suit in

the District Court on November 21, 2018. That order

was not part of the appeal to the Ninth Circuit Court

of Appeals. They are no longer parties in their individ

ual capacities in this action.

•

Steve Berman, Esq.

•

Robert B. Carey, Esq.

•

Leonard W. Aragorn, Esq.

Ill

CORPORATE DISCLOSURE STATEMENT

Mcllwain LLC has no parent company and no

public company owns 10% or more of its stock.

LIST OF PROCEEDINGS

United States Court of Appeals for the Ninth Circuit

No. 20-15445

Mcllwain, LLC, aka Timothy J. Mcllwain, Attorney

at Law, Plaintiff-Appellant, v. Hagens Berman Sobol

Shapiro LLP, Defendant-Appellee, and Steve

Berman, Esquire; et al., Defendants

Date of Final Opinion: August 6, 2021

Date of Rehearing Denial: September 20, 2021

United States District Court for the Northern

District of California

Case No. 18-cv-03127 CW

Mcllwain, LLC, Plaintiff, v.

Steve W. Berman, et al., Defendants

Date of Final Order: February 10, 2020

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED..............................

PARTIES TO THE PROCEEDINGS................

CORPORATE DISCLOSURE STATEMENT...

LIST OF PROCEEDINGS.................................

TABLE OF AUTHORITIES..............................

Vlll

OPINIONS BELOW..........................................

JURISDICTION.... .............................................

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.........................

STATEMENT OF THE CASE...........................

REASONS FOR GRANTING THE PETITION........ 5

The Court Below Erred by Not Addressing

the Issue of Subject Matter Jurisdiction

as a Threshold Issue...................................

II. The Trial Court Lacked Subject Matter

Jurisdiction to Grant Respondent’s Motion

for Summary Judgment..............................

III. The Court Below Erred in Affirming the

Decision of the Trial Court Revoking

Plaintiff’s Appearance Pro Hac Vice........11

IV. The Court Below Erred By Not Considering

Plaintiff’s Argument That Following

the Revocation of Plaintiff’s Appearance

Pro Hac Vice, He Should Have Been

Permitted to Appear Pro Se

.17

TABLE OF CONTENTS - Continued

Page

V. The Prior Decisions of This Court

Prohibiting Representation of a Limited

Liability Corporation, Except by a Licensed

Attorney Deprives the Plaintiff of Due

Process of Law Based Upon the Specific

Facts of the Case At Bar........................... 20

CONCLUSION......................................................... . 25

Vll

TABLE OF CONTENTS - Continued

Page

APPENDIX TABLE OF CONTENTS

Opinions and Orders

Memorandum Opinion of the United States

Court of Appeals for the Ninth Circuit

(August 6, 2021).... .......................................... .

Order of the United States District Court for the

Northern District of California Granting

Motion for Summary Judgment

(February 10, 2020)............................................... 5a

Order of the United States District Court for the

Northern District of California Granting In

Part and Denying In Part Motion to Revoke

Pro Hac Vice Admission and for Monetary

Sanctions (September 9, 2019).......................... 31a

Rehearing Order

Order of the United States Court of Appeals for

the Ninth Circuit Denying Rehearing and

Rehearing En Banc (September 20, 2021)......43a

Statutory Provisions

Relevant Statutory Provision Involved.

45a

Vlll

TABLE OF AUTHORITIES

Page

CASES

Ankerman v. Mancuso,

79 Conn. App. 480, 830 A.2d 388 (2003).

9, 11

Biuens v. Six Unknown Named Agents,

403 U.S. 388 (1971).....................................

Boccone u. Eichen Levinson, LLP.,

301 Fed. Appx. 162 (3rd Cir. 2008)........

Capron v. Van Noorden,

2 Cranch 126, 2 L.Ed. 229 (1804)............

6,7

Cole v. U.S. Dist. Ct. For the District of Idaho,

366 F.3d 813 (9th Cir. 2004).......................

Curtis v. Illumination Arts, Inc.,

2014 WL 556010

(W.D. Wash. Feb. 12, 2014)........................

Gagne v. Vaccaro,

255 Conn. 390, 766 A.2d 416 (2001)........

Great Southern Fire Proof Hotel Co. v. Jones,

111 U.S. 449 (1900).....................................

Henderson ex. rel Henderson v. Shinseki,

562 U.S. 428, 131 S.Ct. 1197,

179 L.Ed. 2d 159 (2011)........................ ....

In Re Bundy,

840 F.3d 1034 (9th Cir. 2016)......... ..... ....

In Re Davis,

___B.R.___ , No. CA 11-07525-DD

2012 WL 3782548

(U.S.B.R. D. S.C. Aug. 30, 2012)....

TABLE OF AUTHORITIES - Continued

Page

In Re NCAA-Student-Athlete Name &

Likeness Licensing Litigation,

724 F.3d 1268 (2013)...................................

International Shoe Co. v. State of Washington,

Office of Unemployment Compensation,

326 U.S. 310, 66 S.Ct. 154,

90 L.Ed. 95 (1945).........................................

Keller v. Electronic Arts, Inc.,

Case No. 09-cv-1967

(N.D. Cal. Feb. 8, 2010)................................

Kontrick v. Ryan,

540 U.S. 443, 124 S.CT. 906,

157 L.Ed. 2nd 867 (2004).............................

Mansfield, C. & L.M.R. Co. v. Swan,

111 U.S. 379, 4 S.Ct. 510,

28 L.Ed. 462 (1884).......................................

6,7

Martens v. Thomann,

273 F.3d 159 (2d Cir.2001)..........................

Mruz v. Caring, Inc.,

166 F.Supp.2d 61 (D.N.J. 2001)...............

Osborn v.'Bank of the United States,

9 Wheat. 738, 22 U.S. 738,

6 L.Ed 204 (1824)...................... ...................

i, 22

Perkins v. Benguet Mining Co.,

342 U.S. 437 (1952).........................................

Roscoe v. United States,

134 F. App’x 226 (10th Cir, 2005)..............

TABLE OF AUTHORITIES - Continued

Page

Rowland v. Men’s Colony, Unit IIMen’s

Advisory Council, 506 U.S. 194,113 S.Ct.

i, 22, 23, 24

716, 121 L.Ed 2nd 756 (1993)...

Ryan v. Astra-Tech, Inc.,

772 F.3d 50 (1st Cir. 2012).........

Serna v. Webster,

2017 WL 3149339

(D. New Mexico June 2, 2017)

18, 19, 20

Stanley v. Richmond,

35 Cal.App.4th 1070,

[41 Cal.Rptr.2d 768] (1995)....

Steele Co. v. Citizens for a Better Environment,

523 U.S. 83, 118 S.Ct. 1003,

140 L.Ed.2d 210 (1998).................................

Transunion, LLC v. Ramirez,

U.S.

, 141 S.Ct. 2190,

210 L.Ed.2d 568, 2021 WL 2599472

(June 25, 2021)..................................... .......... i, 8, 11

Wise v. Wachovia Securities, LLC,

450 F.3d 265 (7th Cir. 2006)........... ............

Young v. City of Providence, ex. rel Napolitano,

404 F.3d 33 (1st Cir. 2005).... ............... .......

CONSTITUTIONAL PROVISIONS

U.S. Const, amend. V

i, 21, 24

U.S. Const, amend. VII

U.S. Const, art. Ill, § 2

1,11

TABLE OF AUTHORITIES - Continued

Page

STATUTES

15U.S.C. § 1681e...

28 U.S.C. § 1254(1)

28 U.S.C. § 1332....

1, 19

28 U.S.C. § 1927....

JUDICIAL RULES

Cal. Rule 1.0...........................

F. R. Civ. P. 11(d)......... .........

12, 14

W.D. Wash. LCR 83.2(b)(3)...

W.D. Wash. LCR 83.8(c).......

W.D. Wash. LR GR 2(g)(4)(B)

OPINIONS BELOW

The decision of the Ninth Circuit Court of Appeals

dated August 6, 2021, affirming the trial court’s decision

granting Defendant/Appellee’s Motion for Summary

Judgment is set forth at App.la. The Decision of

the United States District Court (Wilkens, U.S.D.J)

dated February 10,2020, granting Defendant/Appellee’s

Motion for Summary Judgment is set forth at App.5a.

The Decision of the United States District Court

(Wilkens, U.S.D.J) dated September 9, 2019 revoking

Plaintiffs appearance pro hac vice is set forth at

App.31a. These opinions have not been designated for

publication.

JURISDICTION

The basis for this Court’s jurisdiction is contained

in Art. III. Sec. 2 of the United States Constitution. The

initial court had jurisdiction pursuant to 28 U.S.C.

§ 1332, Diversity of Citizenship. On August 6, 2021, the

Ninth Circuit Court of Appeals rendered a decision

affirming the decision of the United States District

Court for the Northern District of California (Wilkens,

U.S.D.J) granting Respondent’s Motion for Summary

Judgment dated February 10, 2020. On September 20,

2021, the Ninth Circuit Court of Appeals rendered a

decision denying Petitioner’s Motion for Rehearing and

Rehearing En Banc filed August 20, 2021. This Court

has jurisdiction under 28 U.S.C. § 1254(1).

♦

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const, art. Ill, sec. 2

The judicial Power shall extend to all Cases, in

Law and Equity, arising under this Constitution,

the Laws of the United States, and Treaties made,

or which shall be made, under their Authority;-to

all Cases affecting Ambassadors, other public

Ministers and Consuls;-to all Cases of admiralty

and maritime Jurisdiction; to Controversies to

which the United States shall be a Party; to Con

troversies between two or more states; between a

State and Citizens of another State; between Citi

zens of different States ;-between Citizens of the

Same State claiming lands under Grants of dif

ferent States, and between a State, or the Citizens

thereof, and foreign States, Citizens or Subjects.

U.S. Const., amend. V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a present

ment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or

public danger; nor shall any person be subject for

the same offence to be twice put in jeopardy of life

or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived

of life, liberty, or property, without due process of

law; nor shall private property be taken for public

use, without just compensation.

U.S. Const., amend. VII

In Suits at common law, where the value in

controversy shall exceed twenty dollars, the right

of trial by jury shall be preserved, and no fact tried

by a jury, shall be otherwise re-examined in any

Court of the United States, than according to the

rules of the common law.

15 U.S.C. § 1681e

Fair Credit Reporting Act (“FCRA”)

Compliance Procedures

Reproduced in the Appendix at App.45a.

28 U.S.C. § 1332(a)

Diversity of Citizenship;

Amount in Controversy; Costs

The district courts shall have original jurisdiction

of all civil actions where the matter in controversy

exceeds the sum or value of $75,000, exclusive of

interest and costs, and is between— (1) citizens

of different States.

F. R. Civ. P. 11(d)

Inapplicability to Discovery

This rule does not apply to disclosures and dis

covery requests, responses, objections, and motions

under Rules 26 through 37.

♦

STATEMENT OF THE CASE

This lawsuit arises from Respondents unilaterally

and arbitrarily abrogating a written agreement with

the Petitioner to share legal fees in a class action after

Petitioner joined the class of claimants, he was repre

senting with those of the respondents.

The Petitioner filed the Complaint on February

17, 2017, in the U.S. District Court for the District of

New Jersey. Over strenuous objection of the plaintiff/appellant, the case was transferred to the Northern

District of California on May 24, 2018. The Respond

ent filed an answer on December 3, 2018. On May 2,

2019, Petitioner filed a partial motion for summary

judgment. On July 30, 2019, Respondent filed a motion

to revoke Petitioner’s appearance pro hac vice. On

August 25, 2019, Petitioner filed a motion for sanctions

against the Respondent. On September 9, 2019, the

court granted in part, and denied in part, Respondent’s

motion to revoke petitioner’s appearance pro hac vice.

On September 25, 2019, the Court denied Peti

tioner’s motion for sanctions. On October 22, 2019, the

Court denied Petitioner’s Motion for Partial Summary

Judgment. On November 21, 2019, Respondent filed a

motion for summary judgment that was granted by the

court on February 10, 2020. A notice of appeal to the

Ninth Circuit Court of Appeals was timely filed on

March 11, 2020. The Ninth Circuit Court of Appeals

affirmed the judgment of the trial court in a memoran

dum of decision on August 6, 2021. Petitioner timely

filed a Petition for Rehearing and Rehearing En Banc

on August 20, 2021. Petitioner’s Petition for Rehear

ing and Rehearing En Banc was denied by the Court

on September 21, 2021.

REASONS FOR GRANTING THE PETITION

The Court Below Erred by Not Addressing

the Issue of Subject Matter Jurisdiction as

a Threshold Issue.

Petitioner initially raised the issue of whether

the trial court had subject matter jurisdiction to rule

upon the Respondent’s Special Defense upon which the

trial court granted summary judgment, in petitioner’s

memorandum of law in support of petitioner’s motion

for partial summary judgment. (Trial DKT # 84), and

again in his reply brief to the 9th Circuit Court of

Appeals. (Appellate DKT # 34).

This Court has consistently held that prior to any

other considerations, the issue of whether the Court

has subject matter jurisdiction must be addressed as

a threshold issue. “On every writ of error or appeal,

the first and fundamental question is that of jurisdic

tion, first, of this court, and then of the court from which

the record comes. This question the court is bound to

ask and answer for itself, even when not otherwise

suggested, and without respect to the relation of the

parties to it.” Great Southern Fire Proof Hotel Co. v.

Jones, supra, at 453, 20 S.Ct., at 691-692. The require

ment that jurisdiction be established as a threshold

matter “spring[s] from the nature and limits of the

judicial power of the United States” and is ‘inflexible

and without exception.’ Mansfield, C. & L.M.R. Co. v.

Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28 L.Ed.

462(1884).

“This Court’s insistence that proper jurisdiction

appear begins at least as early as 1804, when the court

set aside a judgment for the defendant at the instance

of the losing plaintiff who had himself failed to allege

the basis for federal jurisdiction. Capron v. Van

Noorden, 2 Cranch 126, 2 L.Ed. 229 (1804). Just last

Term, the court restated this principle in the clearest

fashion, unanimously setting aside the Ninth Circuit’s

merits decision in a case that had lost the elements of

a justiciable controversy ...” Steele Co. v. Citizens for

a Better Environment, 523 U.S. 83, 94-95, 118 S.Ct.

1003, 1012, 140 L.Ed.2d 210 (1998).

The trial court’s entire basis for granting summary

judgment, that was raised sua sponte, was that plain

tiffs misstep in not having a signature on one of

the client’s (class representative) contingency fee

agreement, although the client had signed the duties

of class representative that was attached to the

agreement, was such an egregious violation of public

policy to justify nullifying the contract between the

parties. The lower court, however, never addressed

the issue Plaintiff had raised pertaining to the issue

of standing of the defendant to raise the issue, nor the

subject matter jurisdiction of the court to hear it, in

light of the fact, inter alia, that the client had never

been a client of the defendant.

Respectfully, the decision of the Court below,

affirming the decision of the trial court, without

addressing the threshold issue of jurisdiction, conflicts

with the long-established authority of this Court, that

issues of subject matter jurisdiction should be resolved

prior to other issues being considered.

II.

The Trial Court Lacked Subject Matter

Jurisdiction to Grant Respondent’s Motion

for Summary Judgment.

The entire basis of the trial court and subsequent

appellate court affirmation of the decision granting

summary judgment was for Petitioner’s alleged viola

tion of the California or New Jersey Rules of Profes

sional Conduct.

Plaintiff initially raised the issue of subject

matter jurisdiction in his motion of for partial summary

judgment. (Trial DKT # 84), and again in his reply

brief to the 9th Circuit Court of Appeals. (Appellate

DKT # 34). It is well established in the jurisprudence

of this Court that the issue of subject matter jurisdiction

may be raised at any time. “A litigant generally may

raise a court’s lack of subject-matter jurisdiction at

any time in the same civil action, even initially at the

highest appellate instance. Mansfield, C. & L.M.R.

Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed.

462 (1884) (challenge to a federal court’s subject-matter

jurisdiction may be made at any stage of the proceed

ings, and the court should raise the question sua

sponte); Capron u. Van Noorden, 2 Cranch 126, 127, 2

L.Ed. 229 (1804).” Kontriek v. Ryan, 540 U.S. 443, 455,

124 S.CT. 906, 915, 157 L.Ed. 2nd 867 (2004);

Henderson ex. rel Henderson v. Shinseki, 562 U.S. 428,

434, 131 S.Ct. 1197, 1202, 179 L.Ed. 2d 159 (2011).

The basis of the ruling of the courts below was

that the Petitioner’s inadvertent failure to obtain a

signature on one the client’s (class representative)

contingency fee agreement, although the client had

signed the duties of class representative that was

attached to the agreement, was such an egregious vio

lation of public policy to justify nullifying the contract

between the parties, although the Defendant did not

represent the client, and had not represented the

client in the litigation that was the subject of the

current law suit.

This Court recently addressed a similar issue in

141 S.Ct.

U.S.

TransUnion LLC v. Ramirez,

2190, 210 L.Ed.2d 568 (2021). In Ramirez, this Court

reversed the decision of the Ninth Circuit Court of

Appeals that had affirmed the decision of the trial

court denying the Appellant TransUnion, LLC, post

judgment relief following a jury verdict for the class

plaintiffs for violation of the Fair Credit Reporting

Act-(FCRA-15 U.S.C. § 1681e).

Ramirez involved a case where the defendant

credit reporting agency had flagged as potential matches

names of individuals who were allegedly terrorists,

drug traffickers, or people involved in other serious

criminal activities. Approximately eight thousand

people sought and obtained class action status due to

being flagged by the defendant. Only 1800 of them,

however, had that information published to third

parties. This Court, (Kavanaugh, J) ruled that the

remaining plaintiffs did not have standing to raise the

issue. The mere inclusion of their name in the credit

agency’s database was insufficient to confer standing

on those plaintiffs, despite the violation of the Fair

Credit Reporting Act (FCRA-15 U.S.C. § 1681e). They

could not demonstrate an injury that was concrete,

particularized, and actual or imminent.

This Court held “ . . . this Court has rejected the

proposition that a plaintiff automatically satisfies the

injury-in-fact requirement whenever a statute grants

a person a statutory right and purports to authorize

that person to sue to vindicate that right. An injury in

law is not an injury in fact. Article III standing requires

a concrete injury even in the context of a statutory

violation”

U.S.at__ , 141 S.Ct at 2205. (Internal

cites and quotation marks omitted).

In the case at bar, the Defendant proffered a special

defense based upon the lack of a signature on a

contingency fee between Plaintiff and his client (orig

inally a named class plaintiff) although the client had

signed the page immediately following it, pertaining

to the rights and responsibilities of being a class

representative, and further ratified his signature at a

deposition that was conducted during the course of the

proceedings in the trial court. The trial court decided

that the lack of that signature warranted the nullif

ication of the contract between the parties on the basis

that the violation of the Rule of Professional Conduct

was so egregious, it violated public policy.1

The case of Ankerman v. Mancuso, 79 Conn. App.

480, 830 A.2d 388 (2003), aff’d on different grounds,

271 Conn. 772 (2004) is instructive to the case at bar.

1 The defense had raised other grounds, but they were not ruled

upon by the trial court. The Rules of Professional Conduct in both

New Jersey and California, in conformity with many other states

clearly states that the Rules cannot be used as a basis of civil

liability. Boccone v. Eichen Levinson, LLP., 301 Fed. Appx. 162,

164 (3rd Cir. 2008) (“Even assuming defendants did violate a

Rule of Professional Conduct, that violation would “not give rise

to a cause of action nor [would] it create any presumption that a

legal duty has been breached.”) (Internal cites and quotations

omitted.); See Comment to Cal. Rule 1.0. (“Because the rules are

not designed to be a basis for civil liability, a violation of a rule

does not itself give rise to a cause of action for enforcement of a

rule or for damages caused by failure to comply with the rule.

(Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1097 [41

Cal.Rptr.2d 768].”)

In Ankerman, defendant cited the violation of RPC 1.8

as a special defense to the plaintiffs enforcement of a

promissory note to secure the payment of the plaintiff s

legal fees. The Appellate Court, in reversing in part

the trial court’s judgment for the defendant stated

“[plaintiff] asserts that a violation of an ethical rule

does not, by itself, form the basis for any civil liability

or augment any substantive legal duties of attorneys.

Therefore, we address whether a violation of the Rules

of Professional Conduct is legally sufficient to

preclude the enforcement of the note and mortgage on

the defendant’s property. We conclude that it is not.”

79 Conn. App. At 484,830 A2d at 391. (Emphasis added.).

The Court then went on to say “[i]n Noble, we

stated: “[T]he Rules of Professional Conduct do not of

themselves give rise to a cause of action, even to an

attorney’s client. In Gagne v. Vaccaro, 255 Conn. 390,

766 A.2d 416 (2001), our Supreme Court stated: They

are not designed to be a basis for civil liability. . . . The

fact that a Rule is a just basis for a lawyer’s selfassessment, or for sanctioning a lawyer under the

administration of a disciplinary authority, does not

imply that an antagonist in a collateral proceeding or

transaction has standing to seek enforcement of the

Rule. Accordingly, nothing in the Rules should be

deemed to augment any substantive legal duty of

lawyers or the extra-disciplinary consequences of

violating such a duty. (Internal quotation marks omit

ted.) Id., at 403, 766 A.2d 416.” 79 Conn. App. at 485,

830 A.2d at 392. (Internal quotation marks omitted).

If a former client does not have the standing to raise

the RPC as a special defense, then a non-client certainly

doesn’t, nor a litigant who never represented that former

client.

Respectfully, the holding of this Court in Ramirez,

should be controlling in the instant case. The lack of a

signature did not affect the Defendant. Plaintiff’s former

client was not their client at the time of the proceed

ings below. He was not their client at the time of the

underlying case, Keller v. Electronic Arts, Inc., Case

No. 09-cv-1967 (N.D. Cal. Feb. 8, 2010).2 The client

under the Mancuso decision would not have had the

standing to raise this issue, and the Defendant, lack

ing concrete, particularized, and actual or imminent

injury certainly does not. As this Court stated in

Ramirez, “[a] ri uninjured plaintiff who sues in those

circumstances, is, by definition, not seeking to remedy

any harm to herself, but instead is merely seeking to

ensure a defendant’s compliance with regulatory law

. . . Those are not grounds for Art. Ill standing.”__

, 141 S.Ct. at 2206.

U.S. at

III. The Court Below Erred in Affirming the

Decision of the Trial Court Revoking

Plaintiff’s Appearance Pro Hac Vice.

On July 30, 2019, Defendant filed a motion to

revoke Plaintiffs pro hac vice appearance on the

grounds that Plaintiff allegedly failed to adhere to the

Local Rules of the Northern District of California and

was deficient in his response(s) to Defendant’s

discovery requests. (Tr. Dkt. # 93). Defendant was well

aware of the fact that Plaintiff did not have the financial

means to engage counsel to actively participate in his

stead if the motion was granted, just as they were

aware of that fact when they misleadingly convinced

2 Keller was consolidated with other cases into In Re NCAAStudent-Athlete Name & Likeness Licensing Litigation, No. C09-1967 CW.

the District Court judge to transfer the case from New

Jersey to the Northern District of California. (Tr. Dkt.

# 38).

On September 9, 2019, the Court (Wilken,

U.S.D.J.) granted their motion in part revoking Plain

tiffs pro hac vice appearance but denied Defendant’s

request for attorney’s fees. (Tr. Dkt. # 23-1). The trial

court predicated its decision in large part on the

Defendant’s alleged failures to respond appropriately

to discovery. 3 Discovery violations, however, do not

constitute cause to revoke a pro hac vice appearance.

F. R. Civ. P. 11(d) specifically prohibits the imposition

of Rule 11 sanctions for discovery violations. “Inappli

cability to Discovery: This rule does not apply to disclo

sures and discovery requests, responses, objections,

and motions under Rules 26-37.” Respectfully, this

issue should be remanded back to the District Court to

determine if without the reference to discovery viola

tions, the revocation of Plaintiff s pro hac vice status

was still justified.

Furthermore, respectfully, the Plaintiffs alleged

misconduct did not rise to such an egregious level as

to warrant the extreme sanction of revoking his pro hac

vice status and effectively denying him representation

in court.4

3 One of the other grounds was Plaintiffs alleged failure to par

ticipate in person in a futile mediation session. Plaintiff was unable

to make a connecting flight and offered to participate by phone.

Defendant during mediation, was offering a smaller amount to

settle the case then the miniscule amount it had offered previously,

thus guaranteeing that the mediation session would be an exercise

in futility.

4 The trial court, in its memorandum of decision (App (9) denied

Defendant’s request for monetary sanctions ruling in part that

Where an attorney committed the following acts,

the Court of Appeals affirmed the decision of the trial

court that revoke his pro hac vice appearance.

Manufactured evidence

Materially misled the court more than once

Amended the complaint in gross variance to

the court’s granting of the order to amend

the complaint

Disobeyed a court order pertaining to discovery

Attached personal and irrelevant personal

information as exhibits to a hearing request

Threatened to embarrass the defendant’s wife.

Ryan v. Astra-Tech, Inc., 772 F.3d 50,54-55 (1st Cir. 2012).

In contrast to Ryan, plaintiffs pro hac vice

appearance in the instant case was revoked for not

appearing in person at a mediation conference, nor

arranging for local counsel to appear, in person in his

stead, and alleged discovery violations.5 In the trial

court’s opinion Judge Wilken specifically stated that

“although some of Mcllwain’s problematic conduct as

described in the motion involves repeated failures to

Plaintiffs alleged misconduct was not done in bad faith

warranting the imposition of monetary sanctions.

5 By the time Plaintiff realized that he would be unable to make

the connecting flight to arrive at the mediation conference in

person, it was too late to arrange a substitution of local counsel.

He was in the airport and offered to participate in the conference

by phone. Furthermore, there was no guarantee that local counsel

would agree to go absent payment in advance, and in any case

Defendant had already made the mediation session an exercise

in futility by reducing its prior unaccepted amount to settle.

comply with discovery obligations, Hagens Berman

has not filed a discovery letter brief or taken any other

action to seek Court intervention in connection with

such conduct.” (Tr. Dkt. # 23-1 *32).6

In Young v. City of Providence, ex. rel Napolitano,

404 F.3d 33 (1st Cir. 2005), the Court reversed the

decision of the court below censuring plaintiffs attor

neys and revoking their pro hoc vice status. In Young,

the trial court took that action sua sponte, on the

grounds that the plaintiffs counsel in a memorandum

to the Court, had misrepresented the actions of the

court regarding a stipulation pertaining to an exhibit.

The Court of Appeals held that under the circum

stances of the case, the trial court had abused its dis

cretion in sanctioning plaintiff s counsel and revoking

their pro hac vice appearances. The Court found that

while there were problems in negligently drafting the

document in issue, that had offended the court, there

was no intent to deceive the court, nor were there know

ingly false statements contained therein. Similarly,

Judge Wilken declined Defendant’s request to impose

monetary sanctions finding inter alia, “Hagens Berman

has not shown that Mcllwain’s conduct was in bad

faith or tantamount to bad faith. To warrant the

imposition of sanctions under either 28 U.S.C. § 1927

6 Plaintiff respectfully suggests that without the Defendant seeking

that court intervention, the Court acted solely on the Defendant’s

allegations, without a factual record upon which to base that

finding. Plaintiff, in fact, controverted Defendants’ allegations of

discovery violations, and stated that he had turned over large

amounts of documents to Defendant. In any event, discovery vio

lations, of the kind alleged by the defendant, cannot be used as a

basis to revoke Plaintiffs Pro Hac Vice appearance. F. R. Civ. P.

11(d). Supra.

or the Court’s inherent authority, the conduct at issue

must rise to the level of bad faith or its equivalent.”

(App. Dkt. # 23-1; 39-40). (Internal cites omitted).

In imposing the sanctions upon Plaintiff, the trial

court relied in part on In Re Bundy, 840 F.3d 1034 (9th

Cir. 2016); subsequent mandamus proceeding. 852

F.3d 945 (9th Cir. 2017).

Bundy, however, is inapposite to the case at bar.

Bundy involved a criminal case where the defendant

(Bundy) was charged, with others, on a 16-count

criminal indictment following an armed stand-off with

federal officials. Bundy requested that an out-of-state

attorney, Larry Klayman, be permitted to represent

him pro hoc vice. The court refused. “Under our deci

sions, the district court had more than ample cause to

turn down Klayman’s application: he is involved in an

ethics proceeding before the District of Columbia Bar,

and he was not candid with the court about the status

of those proceedings; he disclosed that he was twice

barred in perpetuity from appearing pro hac vice before

judges in the Central District of California and the

Southern District of New York, but he failed to list

numerous cases—all available on Westlaw or LEXIS

—in which he has been reprimanded, denied pro hac

vice status, or otherwise sanctioned for violating

various local rules; and he has a record of going after

judges personally, and shortly after Chief Judge Gloria

Navarro denied his application, Bundy filed a frivolous

Bivens action against her in her own court. This litany

of reasons for denying Klayman pro hac vice status

demonstrates that the district court did not abuse its

discretion, much less commit clear error.” In Re Bundy,

840 F.3d at 1036.

In contrast to Bundy, however, Plaintiff had no

similar history at all at the time of these events. In Re

, No. CA 11-07525-DD 2012 WL

B.R.

Davis,

3782548 * 1(U.S.B.R. D. S.C. Aug. 30, 2012), is

instructive here. The Court recognized “Revocation of

an attorney’s pro hac vice admission is a harsh sanction.

As a result, it should be exercised sparingly and only

in particularly egregious cases. See Mruz v. Caring,

Inc., 166 F.Supp.2d 61, 70 (D.N.J. 2001) (“While it is

indeed true that admission pro hac vice is a privilege,

not a right, . . . revocation of that privilege, once bes

towed, sends a strong message which works a lasting

hardship on an attorney’s reputation.”).7 “Once admit

ted, pro hac vice counsel cannot be disqualified under

standards and procedures any different or more strin

gent than those imposed upon regular members of the

district court bar.” Martens, [v. Thomann, 273 F.3d

[159] at 175-76 [2nd Cir. 2001]. Cole v. U.S. Dist. Ct.

For the District of Idaho, 366 F.3d 813, 821 (9th Cir.

2004). Petitioner respectfully submits that a regular

member of the District Court bar would not have

been disqualified for the alleged conduct for which

Petitioner’s appearance was revoked, especially as it

deprived him of the effective assistance of counsel to

represent him.

7 This is amply illustrated as Petitioner’s admission to the United

States District Court for the Southern District of New York

appears to be delayed as a result of Judge Wilken’s decision

revoking Petitioner’s Pro Hac Vice appearance in the instant

case.

IV. The Court Below Erred By Not Considering

Plaintiff’s Argument That Following the

Revocation of Plaintiff’s Appearance Pro

Hac Vice, He Should Have Been Permitted

to Appear Pro Se.

The trial court, throughout its memorandum of

decision granting defendant’s motion for summary judg

ment, recognized the inter-relationship with Attorney

Mcllwain and Mcllwain Law, LLC. “Timothy Mcllwain

is a ‘solo practitioner operating as Mcllwain LLC a/k/a

Timothy J. Mcllwain, Attorney at Law .. . .Timothy

Mcllwain is the principal of Mcllwain ...” Court Memo

randum of Decision, Feb. 10, 2010 p. 2 n.2. (Hereafter

“Mem. Of Dec.”) “Timothy Mcllwain of ‘Timothy

Mcllwain, Attorney at Law, LLC’ became counsel for

Ryan Hart in HartC on July 10, 2013 . . . Timothy

Mcllwain is the principal of Mcllwain, LLC.” Mem. of

Decision p. 4.

“Timothy Mcllwain signed this term sheet as

‘Plaintiffs Counsel in Hart; this document does not

mention Mcllwain, LLC.” Mem. Of Decision p. 8.30

This document was signed by Timothy Mcllwain but

contains references to Mcllwain ‘law firm.’” The trial

court basically acknowledged the realities of sole

proprietorships and solo practices of law.

Petitioner refers to its motion for sanctions where

there were among other things, overwhelming evidence

that Defendant deliberately misled a federal court judge

in New Jersey in connection with this case, affecting

the appropriate venue. This had the effect of forcing

Plaintiff to litigate in a jurisdiction where he was not

admitted, and as a limited liability company, seemingly,

could not appear pro se. Consequently, in addition to

the expense of being required to appear in California

to prosecute his case, he was also forced to retain local

counsel.

The fact that Attorney Mcllwain executed this

preliminary document in this manner was, of course,

not intended to imply that he represented Mr. Hart

individually. Obviously, it was shorthand for the Hart

class of ROP plaintiffs.

The court permitted a principal (non-attorney) to

appear and represent himself in Curtis u. Illumination

Arts, Inc., 2014 WL 556010, (W.D. Wash. Feb. 12,

2014). The court, in ruling on defense counsel’s 2nd

motion to withdraw his appearance granted in part

and denied in part the motion. “The court has already

granted Mr. Thompson and Ms. Thompson leave to

appear pro se. Order (ECF # 65) at 3.” Curtis * 1.

(Emphasis added and original.). The court permitted

the attorney to withdraw from representing the

principals individually but ordered him to continue to

represent the companies as otherwise it would leave

them unrepresented. “A business entity except a sole

proprietorship must be represented by counsel.” W.D.

Wash. Local Rule GR 2(g)(4)(B). *3 “While individuals

and sole proprietorships may appear in court pro se, ‘a

business entity . . . must be represented counsel.’ Local

Rules W.D. Wash. LCR 83.2(b)(3). * 4 n.2 How the

defendants’ representation of their individual interests,

differed as opposed to the interests of their business

entity was not addressed by the court.

The same issue arose, however, in Serna v.

Webster, 2017 WL 3149339 (D. New Mexico June 2,

2017). In Serna, the court expressed its displeasure

at the local rule requiring an appearance by counsel

representing a corporation or a partnership.

Given the arguable tension between the plain

language of the statutes and the case law, the court

would be inclined on a clean slate, not to extend the

prohibition against unrepresented corporations further

than that entity, and to limit the rule to what the case

law requires. On a clean slate, the Court might be

inclined to distinguish limited liability companies from

corporations. Federal courts do not, for example, find

limited liability companies to be comparable to corpo

rations for the purposes of establishing diversity

under 28 U.S.C. § 1332.

In Wise v. Wachovia Securities, LLC, 450 F.3d 265

(7th Cir. 2006) (Posner, J.) the Seventh Circuit stated:

“Because the overriding goal in crafting a jurisdic

tional rule is simplicity, the courts have held that all

corporations are to be treated alike for diversity pur

poses: all are citizens both of the state of incorporation

and the state in which the corporation has its principal

place of business. The citizenship for diversity pur

poses of a limited liability company, however, despite

the resemblance of such a company to a corporation

(the hallmark of both being limited liability), is the

citizenship of each of its members.” Serna at *5-6

(Cites omitted.)

“On a clean slate, if Serna is the only principal of

the LLC, it would be practical to allow her to proceed

pro se and represent the LLC, too. It is hard to see how

Serna d/b/a/ as a sole principal LLC is meaningfully

different than as a sole proprietorship, which does not

similarly implicate local rule 83.8(c). The Court is not,

however, writing on a clean slate. The Tenth Circuit

has said all ‘business entities’ require an attorney. See

Roscoe v. United States, 134 Fed. Appx. at 228. The

Court and Serna are bound by that legal rule.” Serna

at 6.

The Prior Decisions of This Court Prohib

iting Representation of a Limited Liability

Corporation, Except by a Licensed Attorney

Deprives the Plaintiff of Due Process of

Law Based Upon the Specific Facts of the

Case At Bar.

Petitioner respectfully submits that under these

limited circumstances, where a limited liability company

has a sole organizer, and one employee (the aforemen

tioned sole organizer), the requirements of justice should

allow him to appear pro se on behalf of his one-person

limited liability company, with the result being, that

denial of that ability would ultimately foreclose mean

ingful access to the courts to either redress his grie

vances or defend himself.8

The Plaintiff is a sole proprietorship, with one

employee, himself, who, at the time of this litigation

was registered in New Jersey as a Limited Liability

Corporation. The Defendant successfully had the case

transferred to the Northern District of California, where

Plaintiff is not licensed as an attorney. Petitioner

respectfully submits that under these limited circum

stances, where a limited liability company as a sole

organizer, and one employee (the aforementioned sole

8 Theoretically, a plaintiff could file suit against a limited liability

company on a claim that the company was not insured for. If the

limited liability company could not afford counsel to represent it,

the Plaintiff could obtain a default judgment based solely on the

defendant’s limited means. The defendant’s sole remedy in that

situation would be to dissolve the LLC thereby making his personal

assets vulnerable to seizure by the court.

organizer), the requirements of justice should allow him

to appear pro se on behalf of his one-person limited

liability company, with the result being, that denial of

that ability would ultimately foreclose meaningful

access to the courts to either redress his grievances or

defend himself.

The Fifth Amendment to the Constitution is clear.

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any

person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a

witness against himself, nor be deprived of

life, liberty, or property, without due process

of law; nor shall private property be taken for

public use, without just compensation.

(Emphasis added.)

This decision by the District Court in New Jersey

forced the Plaintiff to retain local counsel at great

expense, and when the District Court in California

revoked Plaintiffs pro hac vice appearance, he was

obligated to come up with more money to have local

counsel actively represent him. When his local counsel

declined to represent Plaintiff further, due to Plaintiffs

lack of funds, Plaintiff effectively was left without

counsel.

The Court below ruled that because Plaintiff had

failed to raise with the District Court the issue of

appearing pro se on behalf of his LLC, the issue was

waived for appellate review. Respectfully, that would

have been a futile gesture since undoubtedly the Dis

trict Court would have felt itself bound by this Court’s

decisions in Osborn v. Bank of the United States, 9 Wheat

738, 22 U.S. 738, 6 L.Ed. 204 (1824) and Rowland v.

Men’s Colony Advisory Council, 506 U.S. 194,113 S.Ct.

716,121 L.Ed. 2d 756 (1993). “The law does not require

the doing of a futile act.”9

In Osborn, Supra, this Court first announced the

rule that a corporation could only appear in a court

through legal counsel. “This principle is peculiarly appli

cable to suits brought in the name of corporations;

because, such a body must always appear by attorney,

either to institute or defend a legal proceeding. It cannot

appear in person, and it can only constitute an attorney

by written power, under its common seal.” Osborn, 22

U.S. at 745, 6 L.Ed. 204.10

In Rowland v. Men’s Colony Advisory Council,

506 U.S. 194,113 S.Ct. 716,121 L.Ed. 2d 756 (1993), this

Court reversed the decision, of the 9th Circuit Court

of Appeals that had reversed the decision of the Dis

trict Court who had denied the petitioner’s motion based

upon an inadequate showing of indigency. This Court

ruled that the 9th Circuit was incorrect in deciding

that an association could apply for in forma pauperis

status. This court examined the statute in question

9 Given that same logic it was likely an error for Petitioner to

raise the issue before the Court of Appeals as that Court would

have been similarly bound.

10 While New York had recognized the existence of a limited

liability company in 1811. There’s no indication that this Court

had recognized the existence of one until 1824 in deciding a case

from New York.

and held the statute could only, apply to “natural per

sons.”

“Underlying this congressional assumption are

probably two others: that the ‘person’ in question enjoys

the legal capacity to appear before a court for the pur

pose of seeking such benefits as appointment of

counsel without being represented by professional

counsel beforehand, and likewise enjoys the capacity

to litigate without counsel if the court chooses to pro

vide none, in the exercise of the discretion apparently

conferred by the permissive language. The state of the

law, however, leaves it highly unlikely that Congress

would have made either assumption about an artificial

entity like an association, and thus just as unlikely

that “person” in § 1915 was meant to cover more than

individuals. It has been the law for the better part of

two centuries, for example, that a corporation may

appear in the federal courts only through licensed

counsel” 506 U.S. at 201-02, 113 S.Ct. at 721.

The Court then went on to say “Whatever the state

of its treasury, an association or corporation cannot be

said to ‘lac[k] the comforts of life,’ any more than one

can sensibly ask whether it can provide itself, let

alone its dependents, with life’s ‘necessities.’ Artificial

entities may be insolvent, but they are not well spoken

of as ‘poor.’ So eccentric a description is not lightly to

be imputed to Congress. 506 U.S. at 203, 113 S.Ct at

722. While this Court in Rowland was addressing the

issue in the context of whether a prisoner’s rights

organization could apply to proceed In Forma Pauperis

to bring suit against employees of the prison, it decided

in the alternative that the individuals affected could

apply for In Forma Pauperis status. No decision, how

ever, addresses the dilemma of a limited liability

company with a sole organizer, who is also the sole

employee, needing access to the courts to either defend

against a legal action, or to bring one to redress a legal

wrong, but is denied such access because it lacks the

means to afford legal counsel. This dichotomy invokes

the essence of the protection of the Fifth Amendment’s

prohibition against depriving persons of property with

out due process of law.H

11 Unlike the statute being considered in Rowland, Supra, the

term “persons” in the Fifth Amendment also includes corporations.

Perkins u. Benguet Consolidated Mining, Co., 342 U.S. 43772 S.Ct.

41396 L.Ed. 485 (1952); International Shoe Co. v. State of Washington,

Office of Unemployment Compensation, 326 U.S. 310, 66 S.Ct.

154,90 L.Ed. 95 (1945).

CONCLUSION

For the foregoing reasons, the Petitioner respect

fully requests this Honorable Court to grant Certiorari

in the above captioned case.

Respectfully submitted,

Timothy J. McIlwain

Petitioner Pro Se

MCILWAIN LAW, LLC

2020 New Road, Suite A

Linwood, NJ 08221

(877) 375-9599

ATTORNEYMCILWAIN@ME. COM

Counsel for Petitioner

December 20,2021

APPENDIX TABLE OF CONTENTS

Opinions and Orders

Memorandum Opinion of the United States

Court of Appeals for the Ninth Circuit

(August 6, 2021)............................... .........

Order of the United States District Court for the

Northern District of California Granting

Motion for Summary Judgment

(February 10, 2020)............................................... 5a

Order of the United States District Court for the

Northern District of California Granting In

Part and Denying In Part Motion to Revoke

Pro Hac Vice Admission and for Monetary

Sanctions (September 9, 2019).......................... 31a

Rehearing Order

Order of the United States Court of Appeals for

the Ninth Circuit Denying Rehearing and

Rehearing En Banc (September 20, 2021)......43a

Statutory Provisions

Relevant Statutory Provision Involved

15U.S.C. § 1681e..........................

45a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.