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Drake v. City of Eloy

United States District Court, D. Arizona

December 22, 2014

Kendall Drake, et al., Plaintiffs,
v.
City of Eloy, et al., Defendants.

ORDER

DAVID G. CAMPBELL, District Judge.

Plaintiffs Kendall Drake and Greg Hunter have filed a motion to disqualify the law firm of Jackson Lewis, PC from representing Defendants in this matter. Doc. 48. The motion is fully briefed. Docs. 48, 51, 55. Defendants have filed a motion for leave to file a sur-reply (Doc. 58), which Plaintiffs oppose (Doc. 64). For the reasons that follow, the Court will deny the motion to disqualify and the motion to file a sur-reply.[1]

I. Background.

Plaintiffs Kendall Drake and Greg Hunter were officers with the Eloy Police Department. On April 20, 2013, Drake and Hunter responded to a call from a citizen regarding an injured cat. Doc. 48 at 2. Plaintiffs allege that when they arrived on the scene they saw that the cat was so severely injured that it would need to be euthanized. Id. Plaintiffs further allege that their supervising sergeant, David Crane, arrived at the scene but delayed euthanizing the cat, allowing it to suffer unnecessarily in violation of Arizona's animal cruelty laws. Id.

Plaintiffs allege that Defendants took various adverse actions against them in the weeks following this incident. In response, Drake submitted an Offensive Behavior/ Harassment Complaint Form to the City's Human Resources Department, alleging that Crane, along with Sergeant Jerome and Lieutenant Tarango, took these actions in retaliation for Drake's complaints regarding the cat incident. Id.

The City hired Jackson Lewis attorney Victoria Torrilhon to conduct an independent investigation of Drake's allegations. Id. A report was submitted to the City Manager on September 13, 2013. Id. at 2-3.

Plaintiffs served Defendants with their Notice of Claims on November 14, 2013, asserting whistleblower retaliation. Id. Defendants assert, without contradiction, that Plaintiffs learned in February of 2014 that Jackson Lewis would be representing Defendants in this case, and yet Plaintiffs waited some eight months to file this motion to disqualify. Plaintiffs maintain that they learned during discovery that Jackson Lewis previously represented Hunter when he worked as a police officer for the Town of Youngtown. Id .; see Kimberly Johnson v. Town of Youngtown, No. 2:10-cv-01948-FJM.

In that case, Chief of Police Kimberly Johnson sued the Town of Youngtown, Hunter, and another officer under Title VII. Johnson alleged that Youngtown and the individual defendants discriminated against her on the basis of sex and retaliated against her for opposing the discrimination. Doc. 48 at 3. Plaintiffs assert that Johnson alleged Hunter was insubordinate and urged his fellow officers to behave in an insubordinate manner. Id. at 3-4. Jackson Lewis prepared disclosure statements, interrogatory responses, and pleadings on behalf of Hunter. Id. at 4.

Plaintiffs seek to disqualify Jackson Lewis on the grounds that (1) Jackson Lewis previously represented Hunter in the Youngtown case, (2) Jackson Lewis received confidential information from Hunter during the former representation, and (3) Defendant Eloy retained Jackson Lewis to conduct an independent investigation just a few months prior to the start of this lawsuit, during which its attorneys had several meetings and discussions with Drake. Doc. 48 at 1-2.

II. Legal Standard.

Disqualification of an attorney is an extreme remedy; courts rarely interfere with the attorney-client relationship. Alexander v. Superior Court, 685 P.2d 1309, 1313 (Ariz. 1984). "The burden is on the party seeking to disqualify opposing counsel to demonstrate that disqualification is necessary." Mardian Equip. Co. v. St. Paul Ins. Co., No. CV05-2729-PHX-DGC, 2006 WL 798881, at *1 (D. Ariz., Mar. 28, 2006) (citing Amparano v. Asarco, Inc., 93 P.3d 1086, 1093 (Ariz.Ct.App. 2004)). The moving party must show "sufficient reason" for the attorney should to be disqualified. Id. at 1092 (citing Alexander, 685 P.2d at 1313).

The Preamble to the Arizona Rules of Professional Conduct states that a violation of an ethical rule "does not necessarily warrant any other non-disciplinary remedy, such as disqualification of a lawyer in pending litigation." Ariz. R. Prof'l Conduct, pmbl. at 20. In general, the rules of professional responsibility are for "ethical enforcement and are not designed to be used as a means to disqualify counsel." Amparano, 208 P.3d at 1092.

Ethical Rule ("ER") 1.9(a) provides that "[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing." Ariz. R. Prof'l Conduct 1.9(a) (emphasis added). For two matters to be "substantially related, " there must be more than general similarity. The Arizona Court of Appeals has explained that "[s]ome factual nexus must exist between the two matters; i.e., the matters themselves ...


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