Case 3:18-cv-05215-JD Document 66 Filed 08/08/19 Page 1 of 7 1 2 3 Timothy W. Moppin, SBN 133363 Attorney at Law 2015 Junction Avenue El Cerrito, California 94530 Telephone: (510) 232-0442 E-Mail: timmoppin@aol.com 4 5 6 7 8 Richard M. Nichols SBN 166638 Attorney at Law 876 Arlene Way Novato, CA 94947 Telephone:415-314-0066 E-Mail: Rnicholspc@gmail.com Attorneys for Plaintiff HOPE SOLO 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 HOPE SOLO, Case No.: 3:18-cv-05215 JD 12 13 14 Plaintiff, v. 15 UNITED STATES SOCCER FEDERATION, 16 Defendant. 17 REPLY TO NON-PARTIES ALEX MORGAN, ET AL’S OPPOSITION TO HOPE SOLO’S EMERGENCY MOTION FOR SANCTIONS PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 11 Date: Time: Dept.: Judge: September 12, 2019 10:00 a.m. Courtroom 11 Hon. James Donato 18 Complaint Filed: August 24, 2018 19 20 Plaintiff, Hope Solo (“Plaintiff” or “Solo”), pursuant to Federal Rules of Civil Procedure (“FRCP”), Rule 11 and United States District Court, Northern District of California, Civil Local 21 Rules (“Civil Local Rules”), Rule 1-4, Rule 7-2, and Rule 7-8, files this Reply to Opposition to 22 Emergency Motion For Sanctions Pursuant to Federal Rule of Civil Procedure, Rule 11 (“Reply 23 to Opposition to Motion for Sanctions”, “Reply”), fully incorporating by reference herein 24 Plaintiff’s Emergency Motion for Sanctions Pursuant to Federal Rule of Civil Procedure, Rule 25 26 27 28 11 (“Dkt.61”, “Motion for Sanctions”, “Motion”) which has been set for a hearing before this Court on September 12, 2019, at 10:00 a.m., as well as the Opposition to Plaintiff’s Motion for Sanctions (“Dkt. 65”, “Opposition to Motion for Sanctions”, “Opposition”), and states as follows: –1– REPLY TO NON-PARTIES MORGAN, ET AL. OPPOSITION TO HOPE SOLO’S EMERGENCY MOTION FOR SANCTIONS PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 11 Case 3:18-cv-05215-JD Document 66 Filed 08/08/19 Page 2 of 7 1 2 3 4 5 Solo’s Motion for Sanctions seeks Rule 11 sanctions against the Morgan Plaintiffs and Putative Class Counsel for the Morgan Plaintiffs for disregarding federal and local rules and improperly filing its “Opposition to Plaintiff’s Motion for Administrative Relief” (Dkt.60) (“Opposition”). From its “I. Introduction” paragraph through its “Conclusion” the improper Opposition to Sanctions misstates the record generally, and the clear language of the pleadings filed in this 6 cause specifically. The Opposition to Sanctions also ignores or misstates the facts and 7 applicable law and procedure in this matter, including, but not limited to, the following: 8 9 10 11 12 Misstatement No. 1 at Opposition to Sanctions Dkt.65 page 1. The Opposition to Sanctions states that Solo is taking “the unprecedented step of asking this Court to issue an order compelling her inclusion in a mediation of the Morgan Plaintiffs’ class action against USSF pending in front of the Honorable R. Gary Klausner in the Central District of California”, and states that “[B]oth the USSF and the Morgan Plaintiffs opposed this request” (Dkt.65, P.1). These statements are belied by the record. The Opposition to Sanctions fails to 13 accurately state the relief requested in Solo’s Motion for Administrative Relief. 14 correctly, Solo’s Motion for Administrative Relief (Dkt.52, “Motion for Administrative Relief”) 15 seeks an order from this Court “referring this case to the impendent mediation in the action Alex 16 Stated Morgan et al v. United States Soccer Federation, Case No. 2:19-cv-01717-RGK-AGR, which as the Court has previously recognized is a case involving similar claims and issues and is pending 17 in the Central District of California.” (Dkt.52). Solo’s Motion for Administrative Relief also 18 “requests this Court to order the parties to confer regarding any potential Mediation and compel 19 the Defendant, and related, similar case party(s) in Morgan et al v. USSF to include Plaintiff 20 Solo as a participant in the pretrial proceeding of Mediation.” (Dkt.52). Solo’s Motion for 21 Administrative Relief further asks the Court to “Order[] the parties in this litigation to confer 22 23 24 regarding any potential Mediation and compelling the parties to participate in the pretrial proceeding of Mediation would promote judicial economy, avoid any undue prejudice and irreparable harm to Plaintiff Solo, as well as permit the parties to fully comply with the Court’s June 7, 2019 Order.” (Dkt.52). 25 “Mediation” as articulated in Solo’s Motion for Administrative Relief, is a pretrial 26 proceeding that encompasses not only a potential actual mediation session with the parties 27 negotiating in the presence of a mediator, but also includes the informal negotiations between 28 the parties and their respective counsel prior to, during, and subsequent to a formal mediation 2 – has not occurred, settlement discussions session, if any. Although a formal mediation –session REPLY TO NON-PARTIES MORGAN, ET AL. OPPOSITION TO HOPE SOLO’S EMERGENCY MOTION FOR SANCTIONS PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 11 Case 3:18-cv-05215-JD Document 66 Filed 08/08/19 Page 3 of 7 1 between USSF and the similarly-situated Morgan Plaintiffs have commenced and are ongoing, 2 and according to USSF’s counsel, a mediation session is currently being scheduled between the 3 4 Morgan Plaintiffs and the Defendant USSF – the same defendant named and served in the Solo v. USSF action. (Dkt.52, Ex. B). Misstatement No. 2 at Opposition to Sanctions Dkt.65 page 1. The Opposition 5 (Dkt.60, P.1) states that “[A]bsent putative class members such as Solo, however, do not have 6 the right to seek to represent the class or manage the class action litigation”, and the Opposition 7 to Sanctions (Dkt.65, P.1) states that “Solo lacked standing to represent the [Morgan] Plaintiffs 8 in any settlement negotiations in the Morgan action”; however, no where in the Motion for 9 Administrative Relief or the Motion for Sanctions does Solo request to represent the Morgan 10 11 Plaintiffs in any settlement negotiations. To imply otherwise is a misstatement and misrepresentation to this Court. Stated correctly - and within the context of USSF’s coercive behavior towards the USWNT and the Morgan Plaintiffs, Solo’s termination from the USWNT 12 by the USSF in August of 2016, and the recent history of capitulation by the USWNT and the 13 Morgan Plaintiffs to the coercion of USSF - Solo’s Motion for Administrative Relief states that 14 “Solo is free to persist and pursue their [Solo’s, USWNT’s, and the Morgan Plaintiffs’] mutual 15 Equal Pay objectives in the Mediation without fear of USSF retribution or retaliation. 16 17 Accordingly, Solo should be allowed to fearlessly participate in the Mediation and or any settlement negotiations.” (Dkt.52). Misstatement No. 3 at Opposition Dkt.65 pages 1 & 3. In addition, the Opposition to 18 Sanctions states that Solo’s Motion for Sanctions (Dkt. 61) makes “wild accusations against the 19 Morgan Plaintiffs that are not remotely supported by the factual record and once again asks this 20 court for improper relief that is not warranted or permitted by any federal or local rule” (Dkt.65, 21 P.1). This is a clear misstatement to this Court, unsupported by any evidentiary support for the 22 23 24 allegations against Solo of inaccurate accusations and failing to point to any fact unsupported by the factual record before this Court. Furthermore, the Opposition to Sanctions blatantly mischaracterizes and misrepresents the relief sought by Solo, as discussed supra. Solo’s Motion for Administrative Relief is consistent with the federal and local rules, as 25 well as consistent with the Court’s June 7, 2019 Order. To state otherwise is an attempt to 26 mislead this Court and to disregard this Court’s June 7, 2019 Order -- which is the apparent 27 intent of the Morgan Plaintiffs. As set forth in Solo’s Motion for Sanctions, the Morgan 28 Plaintiffs have not even properly established standing or the right to be heard on any matters – 3 – Plaintiffs specifically state that they have before this honorable Court. The Non-Party Morgan REPLY TO NON-PARTIES MORGAN, ET AL. OPPOSITION TO HOPE SOLO’S EMERGENCY MOTION FOR SANCTIONS PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 11 Case 3:18-cv-05215-JD Document 66 Filed 08/08/19 Page 4 of 7 1 “not asserted in their Opposition [to Sanctions] or at any other point that they wish to, or could, 2 join Solo in this matter” (Dkt.65, P.3). Specifically, the Morgan Plaintiffs have not attempted to 3 4 join any claims pursuant to FRCP, Rule 18 (“Rule 18”), or attempted to join any parties in this action pursuant to FRCP, Rule 19 (“Rule 19”) and Rule 20 (“Rule 20”). Furthermore, the Morgan Plaintiffs have not intervened, and according to their Opposition, “are not seeking to 5 formally intervene and pursue claims in this case” pursuant to FRCP, Rule 24 (“Rule 24”). 6 (Dkt.65, P.3). 7 Misstatement No. 4 at Opposition to Sanctions Dkt.65 page_4_. In an attempt to 8 contradict their clear violation of federal and local rules, counsel for the Morgan Plaintiffs 9 attempt to allude both to (1) a Notice of Motion to Transfer that was filed with the JPML on 10 March 8, 2019 (Dkt.45), and (2) a designation of Alex Morgan as an “interested party” which requests that the Court clerk (due the similarity of claims and issues in this case with those in 11 Morgan et al v. USSF), apprise counsel for the Morgan Plaintiffs of actions related to the above- 12 styled and numbered case through electronic notification of electronic case filings (“ECF”). A 13 “Notice” of a Motion to Transfer filed with the JPML, or a designation of 1 of 28 Plaintiffs in 14 another case (Alex Morgan) for receipt of ECF documents in this pending case does not 15 constitute an “appearance” as that term is defined in the federal or local rules. (See L.R. 3-4 and 16 17 18 5.1). Furthermore, a “Notice” or request for receipt of ECF filing is clearly not an “Intervention” pursuant to Rule 24, and any attempt to assert otherwise is a purposeful misstatement and an improper misrepresentation to this Court. As stated in Solo’s Emergency Motion for Sanctions, no class has been certified in 19 Morgan et al v. USSF, and it is premature and improper for Non-Parties and counsel for Non- 20 Parties to suggest that Hope Solo has “opted-out” of a class that has yet to be certified. In 21 addition, contrary to the assertions in Non-Party’s Opposition (Dkt.60), Solo’s Motion does not 22 23 state any intention “to negotiate a settlement on behalf of a putative class” or to “manage the class action litigation” (Dkt.60, P.1). In addition, Non-Party’s counsel claims to be unclear as to the relevance to the Rule 23 class certification factor determination regarding the “adequacy” of 24 Class Counsel in relation to improperly filing a pleading (Dkt.60) in a court in which counsels’ 25 clients are not parties, counsel is not attorney of record, and without following federal or local 26 rules for authorization or permission – and attempting to justify such action through an 27 additional Dkt.65 Opposition to Plaintiff’s Emergeny Motion for Sanctions. Such disregard for 28 the Federal Rules is contrary to the obligations of Class Counsel as set forth in Federal Rule 23 – 4such – feigned ambiguity on the part of Nonand the Manual on Complex Litigation. Further, REPLY TO NON-PARTIES MORGAN, ET AL. OPPOSITION TO HOPE SOLO’S EMERGENCY MOTION FOR SANCTIONS PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 11 Case 3:18-cv-05215-JD Document 66 Filed 08/08/19 Page 5 of 7 1 Party’s putative class counsel is not shared by those who adhere to the ethical and federal rules 2 and should not be tolerated by this Court. 3 4 5 The Bottom Line. The real issue at hand is that the Morgan Plaintiffs and their Counsel improperly filed their Opposition to Solo’s Motion for Administrative Relief without proper procedural basis or permission from the Court. Solo’s Motion for Administrative Relief was directed to and served upon Defendant USSF, not the Morgan Plaintiffs. USSF filed its 6 Response to Plaintiff’s Motion for Administrative Relief (Dkt.59), stating that “U.S. Soccer 7 does not oppose mediating with Solo individually”, while challenging the propriety of Plaintiff’s 8 Motion for Administrative Relief. As evidenced by its “Response”, Defendant USSF is not 9 interested in judicial efficiency or economy, and presumably would prefer not to comply with 10 11 this Court’s June 7, 2019 Order requiring USSF to “confer on ways to streamline discovery and other pretrial proceedings with respect to other cases that might raise similar claims and issues”. Procedurally, USSF could have properly referenced the Morgan Plaintiffs’ shared opposition in 12 its “Response”, but it did not. Absent joinder or intervention, any further responsive pleading 13 by Morgan Plaintiffs or counsel for the Morgan Plaintiffs was unsolicited, unwarranted, 14 unnecessary, and procedurally improper. Adopting the faulty rationale from the Morgan 15 Plaintiffs’ counsel’s attempts to justify their acts and omissions would obviate the need for the 16 17 18 Federal Rule on Intervention -- Rule 24 -- as well as any of the rules governing joinder or intervention. Accordingly, Solo’s Motion for Sanctions is consistent with the federal and local rules, specifically FRCP, Rule 11 (“Rule 11”). To the extent that counsel for the Morgan Plaintiffs have any right to be heard before 19 this Court, the Opposition to Sanctions is correct in reciting a portion of the language of FRCP 20 Rule11(c)(2). That Rule provides: after describing “the specific conduct which allegedly 21 violates 11(b)”, and after “notice and a reasonable opportunity to respond”, and after service of 22 23 the Motion for Sanctions pursuant to FRCP Rule 5, it requires that Rule 11(a) “attorneys of record” or “parties” be afforded 21 days from the date of service (“or within another time the court sets”) to withdraw or appropriately correct the “challenged paper, claim, defense, 24 contention, or denial” (Rule 11). However, the Plaintiffs Alex Morgan et al are, by their own 25 admission, “Non Parties” to the above-styled and numbered cause, and have never filed any 26 request for joinder of claims or parties, nor filed any motion for intervention, nor conferred with 27 the parties in this cause regarding joinder nor intervention, nor sought the permission or leave of 28 this Court to file any pleading or “other papers” in this cause, or in any manner requested – 5 –Dkt.65). In addition, contrary to the permission to be heard before this Court. (Dkt.60; REPLY TO NON-PARTIES MORGAN, ET AL. OPPOSITION TO HOPE SOLO’S EMERGENCY MOTION FOR SANCTIONS PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 11 Case 3:18-cv-05215-JD Document 66 Filed 08/08/19 Page 6 of 7 1 assertions in the Opposition for Sanctions, Solo’s Motion for Sanctions does not violate 2 Northern District of California Local Rules 7-2 or 7-8, nor Northern District Guidelines for 3 4 5 Professional Conduct. As stated in Solo’s Motion for Sanctions (Dkt.61), FRCP Rule 11 is silent as to its applicability to “Non-Parties” such as the Morgan Plaintiffs and attorney of record for “Non-Parties”. Cases such as Radcliffe v. Rainbow Const. Co., 254 F.3d 772 (9th Cir. 2001), cited by the Non-Parties in their Opposition, are silent on unprecedented situations such 6 as this in which Non-Parties purposefully file a pleading in a court in which they are not parties 7 and without permission. 8 9 10 11 It is unclear what is meant by the Opposition to Sanctions’ assertion that “Solo’s counsel barely attempted to confer” with counsel for Non-Parties. One either confers or one does not. Notwithstanding the likely inapplicability of FRCP Rule 11(c)(s)’s notice provisions to “NonParties” or counsel for “Non-Parties”, Counsel for Plaintiff Solo engaged in a good faith effort to resolve the issue by conferring with counsel for “Non-Parties”, providing notice of the 12 improper filing (Dkt.60), requesting that Dkt.60 be immediately withdrawn, and providing a 13 reasonable opportunity for counsel for Non-Parties to respond (See Dkt.62-1). No agreement 14 was reached on the Emergency Motion for Sanctions, and the Emergency Motion for Sanctions 15 was filed after requesting withdrawal of Dkt.60 based upon Non-Party putative class counsel’s 16 ethical breach and violation of one or more of six federal rules by filing the Opposition. To avoid the possibility of a bad precedent set by permitting a Non-Party to insert themselves into 17 18 an independent action and to file a pleading or “other papers” in that independent action that may influence the cause or misrepresent to the Court and the general public the relative legal 19 positions of the parties in that independent action, and with the intent to immediately “deter 20 repetition of the conduct or comparable conduct by others similarly situated” (Rule 11(c)(4)), 21 Solo filed the Motion for Sanctions. Solo’s Motion for Sanctions was and is filed as an 22 23 Emergency Motion for Sanctions and seeks immediate withdrawal of the Opposition (Dkt.65) as well as appropriate sanctions against the offending Non-Parties and their counsel. Contrary to the assertions in the Non-Party’s Opposition to Sanctions, Solo’s Motion for 24 Administrative Relief is not an “intervention” in Morgan et al v. USSF. It is filed in the above- 25 styled and titled cause in which Solo is the Plaintiff and it is clearly permissible by the federal 26 and local rules. In contrast, Counsel for Non-Parties cites no federal or local rule permitting 27 Non-Party’s Opposition (Dkt.60) to be filed in Solo v. USSF without joinder, intervention, leave 28 of court, consent of the parties, or authorization by this Court. The Opposition (Dkt.60) is –6– REPLY TO NON-PARTIES MORGAN, ET AL. OPPOSITION TO HOPE SOLO’S EMERGENCY MOTION FOR SANCTIONS PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 11 Case 3:18-cv-05215-JD Document 66 Filed 08/08/19 Page 7 of 7 1 improper and the acts or omissions by Non-Parties in filing the Opposition (Dkt.60) should be 2 subject to sanctions. CONCLUSION 3 4 5 Based upon the aforementioned, Plaintiff Solo respectfully requests this Court to grant its Emergency Motion for Sanctions Pursuant to Federal Rule of Civil Procedure, Rule 11. 6 Dated: August 7, 2019 Respectfully submitted, 7 8 9 _________/s/_________________ TIMOTHY W. MOPPIN, ESQ. Attorneys for Plaintiff HOPE SOLO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 –7– REPLY TO NON-PARTIES MORGAN, ET AL. OPPOSITION TO HOPE SOLO’S EMERGENCY MOTION FOR SANCTIONS PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 11