AZ Pool Supplies Incorporated v. Saltman Enterprises Incorporated et al

Filing 33

ORDER denying 15 Motion for Sanctions; denying 15 Motion for Order to Show Cause; denying 29 Motion to Disqualify Counsel; granting 30 Motion to Quash. Signed by Judge David G Campbell on 9/28/2012.(NVO)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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AZ Pool Supplies Incorporated, an Arizona
foreign corporation,

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Plaintiff,

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ORDER

v.

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No. CV12-1214 PHX DGC

Saltman Enterprises Incorporated, a revoked
Arizona corporation, et al.,

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Defendants.

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Plaintiff’s motion for inherent sanctions (Doc. 15) and its motion to disqualify

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counsel (Doc. 29) are denied, and Defendants’ motion to quash the deposition of defense

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counsel (Doc. 30) is granted.

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Plaintiff’s motion for inherent sanctions is based on Defendants’ answer to the

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complaint and should have been brought, if justified at all, under Federal Rule of Civil

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Procedure 11. That rule requires that the motion be served before filing, to afford

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opposing counsel an opportunity to address charges in the motion before the Court’s time

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and resources are invoked to resolve the issue. Fed. R. Civ. P. 11(c)(2). Plaintiff’s

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counsel cannot evade these requirements by appealing to the Court’s inherent power.

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Moreover, the typical remedy for statements in a pleading with which opposing counsel

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disagrees is to litigate those issues and establish the correct facts, not to fire off a motion

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for sanctions.

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Plaintiff’s motion to disqualify counsel constitutes a similar tactical salvo rather

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than a justified motion.

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submitted an affidavit in response to Plaintiff’s motion for sanctions and allegedly

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violated several ethical rules in the process, including making himself a witness in the

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litigation. To avoid the use of ethical rules for the tactical disqualification of opposing

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counsel, Arizona law provides that “[o]nly in extreme circumstances should a party to a

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lawsuit be allowed to interfere with the attorney-client relationship of his opponent.”

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Alexander v. Superior Court, 685 P.2d 1309, 1313 (Ariz. 1984).

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Plaintiff seeks to disqualify defense counsel because he

The allegations in the motion to disqualify do not approach extreme
circumstances.

Defense counsel filed the affidavit because Plaintiff’s counsel had

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accused him of unethical conduct. And although Plaintiff’s counsel may disagree with

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factual assertions made in the affidavit, the proper remedy is not to seek disqualification

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of opposing counsel, but to litigate the facts and establish the truth.

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Plaintiff’s counsel has issued a notice of deposition for defense counsel on the

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basis of defense counsel’s affidavit. Defendant’s motion to quash seeks to prevent the

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deposition. The motion will be granted and the deposition quashed. The deposition, like

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the motions discussed above, is a tactical move designed to obtain some advantage over

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opposing counsel or his client.

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Plaintiff’s counsel is warned that the Court will not tolerate further vexatious

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litigation tactics like those displayed in his motions and the deposition notice. The

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federal courts are available to achieve the just, speedy, and inexpensive resolution of

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genuine disputes. Fed. R. Civ. P. 1. Those goals cannot be achieved when parties or

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counsel engage in accusatory and vexatious litigation practice rather than focusing on the

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merits of the dispute. Plaintiff’s counsel is also admonished that he should cease tossing

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out accusations of perjury and lies as though they were mere greetings. Courtesy,

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respect, and civility are mandatory in this Court.

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IT IS ORDERED:

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1.

Plaintiff’s motion for inherent sanctions (Doc. 15) is denied.

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2.

Plaintiff’s motion to disqualify counsel (Doc. 29) is denied.
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3.

Defendants’ motion to quash (Doc. 30) is granted.

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Dated this 28th day of September, 2012.

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