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Lath v. Oak Brook Condominium Owners' Association

United States District Court, D. New Hampshire

January 30, 2017

Sanjeev Lath
v.
Oak Brook Condominium Owners' Association, Cheryl Vallee, Perry Vallee, William Quinn Morey, Gerald Dufresne, Christos Klardie, Vickie Grandmaison, Patty Taylor, Betty Mullen, Scott Sample, John Bisson, and Warren Mills Opinion No. 2017 DNH 017

          Gary M. Burt, Esq.

          Gerard Dufresne, pro se

          Sanjeev Lath, pro se

          Sabin R. Maxwell, Esq.

          Daniel E. Will, Esq.

          Joshua M. Wyatt, Esq.

          ORDER

          Landya McCafferty United States District Judge.

         Sanjeev 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.[1] Nine of those defendants (Oak Brook, [2] 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.

         As 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.

         I. Motion to Strike

         Plaintiff's 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.

         Doc. 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.[3] 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.

         Defendants 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.

         Plaintiff's 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.

         Defendants 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)).

         The 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.

         If 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.

         Because 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.

         However, 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 stated therein.

         As the 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 course.

         In sum, 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.

         II. Motion to Disqualify Attorney Burt

         Plaintiff 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 Burt's disqualification.

         The court begins with the applicable legal framework and then turns to plaintiff's arguments for disqualifying Attorney Burt.

         A. The Legal Framework

         Under 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.

         LR 83.5, DR-1.

         The NH 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 ...

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