Roosevelt Irrigation District, a political subdivision of the State of Arizona, Plaintiff,
Salt River Project Agricultural Improvement and Power District, et al., Defendants.
G. MURRAY SNOW, District Judge.
Currently pending before the Court is Defendants Honeywell International, Inc., Corning Incorporated, Salt River Project Agricultural Improvement and Power District, Dolphin Incorporated, Univar USA Incorporated, Union Pacific Railroad Company, Freescale Semiconductor, Inc. and Air Liquide America Specialty Gases, LLC's ("Moving Defendants") Motion for the Complete Disqualification of Gallagher & Kennedy, and Memorandum of Points and Authorities (Doc. 664). Plaintiff Roosevelt Irrigation District's ("RID") filed its response (Doc. 691), and at this Court's invitation, Gallagher & Kennedy ("G&K") also responded (Doc. 688). Accordingly, moving Defendants filed replies (Docs. 696 & 697). RID's Sur-Response in Opposition to Motion for Complete Disqualification of Gallagher and Kennedy (Doc. 718) seeking leave to file a sur-response is also pending at this time. Oral argument regarding Moving Defendants' motion was heard on September 24, 2013. Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Macdonald for pretrial case management. As discussed below, the Court will grant RID's motion for sur-response, and deny Moving Defendants' request for complete disqualification.
I. RID'S SUR-RESPONSE
The Court having reviewed RID's Sur-Response in Opposition to Motion for Complete Disqualification of Gallagher and Kennedy (Doc. 718) and no opposition having been filed, the Court grants Plaintiff leave to file the sur-response.
II. MOTION FOR COMPLETE DISQUALIFICATION
Moving Defendants seek an Order from this Court requiring Gallagher & Kennedy ("G&K") to:
disengage in any representation of RID regarding the [West Van Buren Area Water Quality Assurance Revolving Fund] WVB WQARF site, including specifically that G&K (1) will not have any contact with [the Arizona Department of Environmental Quality] ADEQ or any other body, directly or indirectly, that is related in any way to remedial actions that are or may become the subject of cost recovery under the [Second Amended Complaint] SAC; (2) will immediately cease from having any contacts with consultants to RID who are related in any way to the remedial actions that are the subject of cost recovery in the SAC; and (3) will disengage from any work that it might be doing on any other alleged RID response action, the costs of which will be sought in this matter.
Mot. for the Complete Disqual. of G&K and Mem. of Points and Authorities (Doc. 664) at 18.
On February 9, 2010, G&K on behalf of Plaintiff RID filed a Complaint (Doc. 1) for inter alia the recovery of costs pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601 et seq. ("CERCLA"). On July 23, 2010, RID filed its First Amended Complaint ("FAC") (Doc. 10). Shortly after the filing of the FAC, several Defendants filed motions to disqualify G&K as counsel for RID. See Order 8/26/2011 (Doc. 468). After additional submissions by the parties and oral argument, Judge Ezra entered a detailed and thorough analysis regarding the disqualification issue. Id. Ultimately, G&K was disqualified as to five (5) Defendants, Honeywell, Corning, Univar, Salt River Project Agricultural Improvement and Power District ("SRP") and Dolphin, and required RID to obtain new counsel to represent it adverse to these Defendants in this litigation. Id. at 126.
Subsequent to the Court's August 26, 2011 Order (Doc. 468), RID sought to substitute Bonnett, Fairbourn, Friedman and Balint, P.C. ("BFFB") for G&K with respect to Defendants Corning, Dolphin, Honeywell, SRP, Union Pacific Railroad and Univar (Doc. 478). RID also sought leave to file a Second Amended Complaint (Doc. 479). The Defendants with whom G&K had a conflict, objected to the manner by which RID was implementing the Court's August 26, 2011 Order (Doc. 468). See Hr'g Tr. 1/4/2012 (Doc. 490) at 10:11-15, 11:5-9, 23:13-21. At that time, Judge Ezra requested additional briefing on the implementation issue, and made clear that he would not be revisiting the August 26, 2011 Order (Doc. 468). Hr'g Tr. 1/4/2012 (Doc. 490) at 23:13-24:5.
The relevant parties filed additional briefing and oral argument was heard; however, prior to the Court issuing its Order regarding the implementation issue, RID dismissed the conflict Defendants. See Notice of Voluntary Dismissal (Doc. 525). The same Defendants were returned to this litigation through Third-Party complaints, and renewed their objections to the enforcement of the Court's disqualification Order. See Third-Party Defs.' Renewed Mot. to Enforce Disqualification Order (Doc. 580).
On May 20, 2013, G&K filed its Ex Parte Application for Substitution of Counsel with Client Consent (Doc. 619). The motion stated in relevant part that:
G&K seeks to withdraw completely as RID's counsel in this civil action to terminate the ongoing disqualification motion practice, so as to allow RID to move quickly to the merits of its case through new counsel. G&K will not in the future seek to ...