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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

THOMAS VON THURY,

Plaintiff,

v.

DORIS S. VON THURY, et al.,

Defendants.

Case No. 17-cv-00637-MEJ 

ORDER DENYING MOTION TO 

DISQUALIFY AND MOTION FOR 

SANCTIONS

Re: Dkt. No. 12

Pending before the Court is Plaintiff Thomas Von Thury’s Motion to Disqualify Counsel 

and for Sanctions. See Mot., Dkt. No. 12. Defendants Cecile Von Thury Nagy Wahl, Doris Von 

Thury, and Klaus Wahl (collectively, “Defendants”) filed an Opposition (Dkt. No. 14), and 

Plaintiff filed a reply (Dkt. No. 16)

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. 

The Court finds the Motion suitable for disposition without oral argument and accordingly 

VACATES the hearing scheduled for August 3, 2017. See Civ. L.R. 7-1(b); Fed. R. Civ. P. 78(b). 

For the reasons stated below, the Court DENIES Plaintiff’s Motion in its entirety.

A. Motion to Disqualify

Attorney Jerome Synold represents Defendants in this action. See Opp’n. Plaintiff asks 

the Court to disqualify Synold, arguing Synold sent Plaintiff a misleading email that did not 

disclose he represents Defendants, thereby violating California Rule of Professional Conduct 1-

400. See Mot.; see also Von Thury Decl. ¶¶ 4-11, Dkt. No. 12-1. Plaintiff does not attach the 

misleading email in question “due to the way Mr. Synold’s website was configured.” Von Thury 

 

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 Defendants also filed a sur-reply without seeking leave to do so. See Dkt. No. 17. Absent 

approval of the Court, sur-replies are not permitted (see Civ. L.R. 7-3(d)), and the Court therefore 

will not consider this document.
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United States District Court

Northern District of California

Decl. ¶ 12. Plaintiff does not explain the basis for his belief that the configuration of Synold’s 

website affected Plaintiff’s ability to retain emails sent to Plaintiff’s own email address. He 

declares that, upon being informed by “a lawyer in Germany” that Synold represents Defendants, 

he “realized that Mr. Synold had been deceptive and that [Plaintiff] could very easily have 

disclosed confidences to him before learning the truth.” Id. ¶ 10. It is unclear why Plaintiff would 

have disclosed confidences to Synold, given his representation he deleted Synold’s email as spam. 

Id. ¶ 8. In opposition, Defendants attach what Synold declares are true and correct copies of the 

only correspondence Synold sent Plaintiff before answering the Complaint.

2

 See Opp’n at 4-5; id.,

Ex. A (cover email), Ex. B (letter); Synold Decl. ¶¶ 2-4, Dkt. No. 14. The letter explains 

Plaintiff’s attempts to serve Defendants were defective, and that the letter “shall serve as an 

attempt to meet and confer with you regarding your attempted service of process. . . . [and] as an 

attempt to advise you of the defects associated with your intended service of process thereby 

allowing you to rectify the defects should you choose to do so.” Id., Ex. B. While Plaintiff is 

correct the letter does not explicitly state Synold represents Defendants, the Court finds that this is 

the only reasonable interpretation of the letter. The Court specifically disagrees with Plaintiff’s 

argument that “it was perfectly reasonable from the content of Mr. Synold’s email and the 

surrounding circumstances that it be understood as a solicitation for offering legal services which 

is why Plaintiff deleted it.” Mot. at 5. This argument is especially poorly taken given that 

Plaintiff has been “a practicing lawyer for over 40 years in multiple jurisdictions and courts” (id.) 

and the letter repeatedly mentions it is an attempt to meet and confer regarding the deficiencies of 

the Complaint and service thereof.

Plaintiff has not shown Synold’s letter contained any untrue statement; contained any 

matter which tends to confuse, deceive, or mislead the public; omitted to state any fact necessary 

 

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In his Reply, Plaintiff declares the letter Defendants attached is not the correspondence he 

received, although he acknowledges it bears “definite similarities” to the document he recalls 

receiving. See Suppl. Von Thury Decl. ¶ 2. Besides stating the letter he recalls receiving did not 

contain any references to “meeting and conferring”, he offers no further detail to support his 

contention the letter Synold swears is a true and correct copy of the document he emailed Plaintiff 

is not that.
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United States District Court

Northern District of California

to make the statements made, in light of the circumstances under which they are made, not 

misleading to the public; or failed to clearly indicate “expressly, or by context” that it is a 

communication or solicitation. See Mot. at 5 (quoting Rule 1-400(1)-(4)). Synold’s inclusion of a 

standard polite closing inviting Plaintiff to contact him to discuss the contents of the letter does 

not “clearly” establish the letter is a solicitation. See Reply at 2. Plaintiff accordingly has not 

established any violation of Rule 1-400. The Court therefore DENIES the request to disqualify 

Synold as Defendants’ attorney in this action.

B. Plaintiff’s Motion for Sanctions

Plaintiff asks the Court to award him sanctions because Defendants declined to accept 

informal service of the Complaint and Plaintiff was forced to incur the expenses of serving 

Defendants pursuant to the requirements of the Hague Convention. Plaintiff may be able to 

recover the costs of international service if he prevails in this action; he may not recover these 

costs as a sanction for Defendants’ insistence that Plaintiff follow the Hague Convention 

requirements for international service. See Fed. R. Civ. P. 54(d); Civ. L.R. 54-3 (“Fees for service 

of process by someone other than the marshal acting pursuant to Fed. R. Civ. P. 4(c), are 

allowable to the extent reasonably required and actually incurred.”). Moreover, Plaintiff 

recognizes that the mandatory cost shifting provision contained in Rule 4(d)(2) is inapplicable in 

this instance because Defendants are not located in the United States. Mot. at 7. The Court 

DENIES Plaintiff’s request for sanctions. If he prevails in the action, he may seek to recover these 

costs at the conclusion of the suit.

C. Defendants’ Request for Sanctions

Defendants include in their Opposition a request for sanctions based on Plaintiff’s 

violation of Federal Rule of Civil Procedure 11. This is not procedurally proper. See Civ. L.R. 7-

8. The Court denies without prejudice Defendants’ request. 
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United States District Court

Northern District of California

The Court ORDERS Plaintiff to review Federal Rules of Civil Procedure 1 and 11, and 

ORDERS all parties to review the Local Rules of this Court. 

IT IS SO ORDERED.

Dated: July 12, 2017

______________________________________

MARIA-ELENA JAMES

United States Magistrate Judge