United States District Court, D. New Hampshire
M. Burt, Esq.
Dufresne, pro se
Sanjeev Lath, pro se
R. Maxwell, Esq.
E. Will, Esq.
M. Wyatt, Esq.
McCafferty United States District Judge.
Lath, purporting to act in both his individual capacity and
derivatively, on behalf of Oak Brook Condominium Owners'
Association (“Oak Brook”), has filed a 16-count
amended complaint that asserts claims against 12
defendants. Nine of those defendants (Oak Brook,
Cheryl Vallee, Perry Vallee, William Morey, Christos Klardie,
Vickie Grandmaison, Patty Taylor, Scott Sample, and Warren
Mills) are represented by Attorney Gary Burt. Defendant John
Bisson is represented by Attorneys Daniel Will and Joshua
Wyatt. Before the court are: (1) plaintiff's motion to
disqualify Attorney Burt; (2) a motion filed (or joined) by
all of the defendants represented by Attorney Burt
(hereinafter “defendants”), asking the court to
strike one of the attachments to plaintiff's motion to
disqualify Attorney Burt; and (3) plaintiff's motion to
disqualify Attorneys Will and Wyatt. The two motions to
disqualify have been opposed; the motion to strike is
unopposed. For the reasons that follow, the two motions to
disqualify are denied, and the motion to strike is granted in
part and denied in part.
noted, this order addresses three motions. Ordinarily, the
court would deal with those motions in chronological order.
But because resolution of defendants' motion to strike
will have an impact upon the evidence the court will consider
when ruling on plaintiff's earlier-filed motion to
disqualify Attorney Burt, the court will begin with the
motion to strike. Moreover, because the court may strike
matter from a pleading either on motion made by a party or on
its own, see Fed.R.Civ.P. 12(f), the fact that
defendants' motion to strike was filed by an attorney
that plaintiff seeks to disqualify would create no impediment
to the court reaching the issues defendants raise in their
motion to strike, even if it were to disqualify the attorney
who filed it.
Motion to Strike
motion to disqualify Attorney Burt is supported by, among
other things, an attachment captioned “Notice of
Counsel Conduct.” In the introductory section of that
notice, plaintiff states:
This motion and the annexed memorandum will show cause as to
why a Court order is necessary for a discovery protocol, such
that the rights of all parties are protected. This memorandum
will evidence how Attorney Gary Burt's conduct is that of
a “Rambo” litigator.
no. 20-2 at 3 (emphasis added). Plaintiff filed his
notice six days after Attorney Burt filed his appearance in
this case, before any discovery had been conducted.
Necessarily, the notice says nothing about how Attorney Burt
has conducted discovery in this case. Rather, it consists of
a series of complaints about Attorney Burt's actions as
opposing counsel in one or more of the cases that Lath has
brought against Oak Brook in other fora. After describing
Attorney Burt's conduct in those cases, plaintiff
explains: “The gravamen of Plaintiff's Motion is to
prevent a repeat of what has been an ordeal and a mammoth
task, to discover facts in the case.” Id. at
23 (emphasis added). Plaintiff concludes his notice with a
prayer for relief: “GRANT Plaintiff's request for
an Order on Deposition Protocol.” Id. at 25.
respond by moving the court to strike plaintiff's notice
or, in the alternative, to deny his request for a deposition
protocol. Plaintiff has not responded to defendants'
motion to strike.
notice is unusual, both procedurally and substantively. As
defendants correctly point out, no such form of pleading is
recognized by the Federal Rules of Civil Procedure
(“Federal Rules”). Perhaps for that reason, the
notice was not filed as a freestanding pleading but, rather,
as an attachment to a conventional motion. However, the
notice refers to itself as a motion, and concludes with a
prayer for relief, as a motion would. The court presumes that
the hybrid nature of the notice is what led defendants to
move the court, in the alternative, either to strike the
notice or to deny the relief requested in it. That said, to
the extent that defendants ask the court to strike the notice
in its entirety, their motion is denied, but to the extent
they ask the court to strike the request for relief included
in the notice, their motion is granted.
base their motion to strike on Rule 12(f) of the Federal
Rules, which provides that “[t]he court may strike from
a pleading . . . any redundant, immaterial, impertinent, or
scandalous matter.'” “However, Rule 12(f)
‘motions are narrow in scope, disfavored in practice,
and not calculated readily to invoke the court's
discretion.” Carney v. Town of Weare, No.
15-cv-291-LM, 2016 WL 320128, at *2 (D.N.H. Jan. 16, 2016)
(quoting Manning v. Bos. Med. Ctr. Corp., 725 F.3d
34, 59 (1st Cir. 2013); citing Boreri v. Fiat
S.P.A., 763 F.2d 17, 23 (1st Cir. 1985)).
court agrees with defendants that the factual content of
plaintiff's notice, i.e., his allegations concerning
Attorney Burt's conduct in other cases, is immaterial to
this case. “To show that matter is immaterial,
defendants must demonstrate that it has ‘no essential
or important relationship to the claim for relief or the
defenses being plead[ed].'” Carney, 2016 WL
320128, at *3 (quoting Petrie v. Elec. Game Card,
Inc., 761 F.3d 959, 967 (9th Cir. 2014)). Nothing that
Attorney Burt may have done during the litigation of other
cases in other courts has any relationship to whether he
should be disqualified from representing one or more of the
defendants in this case. But because striking matter from a
pleading is a drastic and disfavored remedy, see Id.
at *2, and because the objectionable matter in the notice is
immaterial but not scandalous, the court will deny
defendants' request to strike the notice in its entirety.
That said, the court will disregard all of the immaterial
matter in the notice, and will not consider that matter when
ruling on plaintiff's motion to disqualify Attorney Burt.
plaintiff's notice consisted only of his description of
Attorney Burt's conduct in other cases, there would be
nothing more to say. But the notice also asks the court for
affirmative relief, in the form of a deposition protocol, and
defendants object specifically to that aspect of
plaintiff's notice. The court agrees with defendants that
plaintiff's request for a deposition protocol must be
either stricken or denied.
plaintiff placed his request for a deposition protocol in an
attachment to a pleading that seeks the disqualification of
Attorney Burt, plaintiff appears to have violated LR
7.1(a)(1). Rule 7.1(a)(1) provides, in pertinent part, that
“[f]ilers shall not combine multiple motions seeking
separate and distinct relief into a single filing.” It
is difficult to see how the disqualification of Attorney Burt
and the issuance of a deposition protocol would not qualify
as separate and distinct forms or relief, and indeed, the
notice that plaintiff attached to his motion to disqualify
actually calls itself a motion. So, attaching the notice to a
motion to disqualify Attorney Burt would certainly appear to
violate LR 7.1(a)(1), which would justify striking
plaintiff's request for a deposition protocol.
plaintiff's request for a discovery protocol could
plausibly be construed as a conditional request that comes
into play only in the event of an unfavorable decision on his
motion to disqualify Attorney Burt. On that reading, a
deposition protocol would not be separate and distinct relief
but, rather, would be an alternative form of relief, intended
to address the same underlying issue as the relief plaintiff
seeks in his motion to disqualify Attorney Burt. Even under
that plaintiff-friendly construction of plaintiff's
notice, the court must still deny the request for relief
court has noted, no discovery has yet taken place in this
case, and plaintiff asks this court to order a deposition
protocol based upon Attorney Burt's conduct in one or
more other cases in the state courts. Obviously, the state
courts were or are the appropriate fora in which to address
the conduct described in plaintiff's notice. Any number
of concerns, including comity, compel this court to decline
plaintiff's invitation to put Attorney Burt on trial in
this case for his conduct in other cases. The court's
sole concern in this case is the conduct of discovery in this
case. Should any problems arise during the depositions in
this case, those problems may be addressed in the normal
to the extent that defendants move to strike plaintiff's
notice in its entirety, their motion is denied. But, to the
extent that they object to plaintiff's request for a
deposition protocol, their motion to strike is granted.
Motion to Disqualify Attorney Burt
moves to disqualify Attorney Burt on grounds that: (1) in
various state-court actions in which Attorney Burt was
opposing counsel, he took actions with the primary purpose of
embarrassing, delaying, or hindering him, in violation of
Rule 4.4 of the New Hampshire Rules of Professional Conduct
(“NH Conduct Rules”); (2) in those actions,
Attorney Burt provided him with legal advice, in violation of
Rule 4.3; and (3) Oak Brook's status as both a normal
defendant on his individual claims and the nominal defendant
on his derivative claims creates a concurrent conflict of
interest, under Rule 1.7, that must be remedied by Attorney
court begins with the applicable legal framework and then
turns to plaintiff's arguments for disqualifying Attorney
the United States Code, “all courts established by Act
of Congress may from time to time prescribe rules for the
conduct of their business.” 28 U.S.C. § 2071(a).
This court has prescribed rules for the conduct of its
business that provide, in pertinent part:
The Standards for Professional Conduct adopted by this court
are the Rules of Professional Conduct as adopted by the New
Hampshire Supreme Court, as the same may from time to time be
amended by that court, and any standards of conduct set forth
in these rules.
Conduct Rules include provisions that, under certain
circumstances, might require the disqualification of a
party's opposing counsel. But, as the New Hampshire
Supreme Court (“NHSC”) has explained, in a case
involving Rule 1.9(a) of the NH Conduct Rules:
Disqualification . . . “conflicts with the general
policy favoring a party's right to representation by
counsel of choice, and it deprives current clients of an
attorney familiar with the particular matter.”
Id.; see also McElroy v. Gaffney, 129 N.H.
382, 390 (1987). We must, therefore, seek to ensure that the
trust and loyalty owed by lawyers to their clients are not
compromised, while preserving the ability of clients to
freely engage counsel of their choice. See, e.g., Ramada
Franchise v. Hotel of Gainesville,988 F.Supp. 1460,
1463-64 (N.D.Ga. 1997); Federal ...