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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    1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 AZ Pool Supplies Incorporated, an Arizona foreign corporation, 10 Plaintiff, 11 ORDER v. 12 No. CV12-1214 PHX DGC Saltman Enterprises Incorporated, a revoked Arizona corporation, et al., 13 Defendants. 14 15 Plaintiff’s motion for inherent sanctions (Doc. 15) and its motion to disqualify 16 counsel (Doc. 29) are denied, and Defendants’ motion to quash the deposition of defense 17 counsel (Doc. 30) is granted. 18 Plaintiff’s motion for inherent sanctions is based on Defendants’ answer to the 19 complaint and should have been brought, if justified at all, under Federal Rule of Civil 20 Procedure 11. That rule requires that the motion be served before filing, to afford 21 opposing counsel an opportunity to address charges in the motion before the Court’s time 22 and resources are invoked to resolve the issue. Fed. R. Civ. P. 11(c)(2). Plaintiff’s 23 counsel cannot evade these requirements by appealing to the Court’s inherent power. 24 Moreover, the typical remedy for statements in a pleading with which opposing counsel 25 disagrees is to litigate those issues and establish the correct facts, not to fire off a motion 26 for sanctions. 27 28 Plaintiff’s motion to disqualify counsel constitutes a similar tactical salvo rather     1 than a justified motion. 2 submitted an affidavit in response to Plaintiff’s motion for sanctions and allegedly 3 violated several ethical rules in the process, including making himself a witness in the 4 litigation. To avoid the use of ethical rules for the tactical disqualification of opposing 5 counsel, Arizona law provides that “[o]nly in extreme circumstances should a party to a 6 lawsuit be allowed to interfere with the attorney-client relationship of his opponent.” 7 Alexander v. Superior Court, 685 P.2d 1309, 1313 (Ariz. 1984). 8 9 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 10 accused him of unethical conduct. And although Plaintiff’s counsel may disagree with 11 factual assertions made in the affidavit, the proper remedy is not to seek disqualification 12 of opposing counsel, but to litigate the facts and establish the truth. 13 Plaintiff’s counsel has issued a notice of deposition for defense counsel on the 14 basis of defense counsel’s affidavit. Defendant’s motion to quash seeks to prevent the 15 deposition. The motion will be granted and the deposition quashed. The deposition, like 16 the motions discussed above, is a tactical move designed to obtain some advantage over 17 opposing counsel or his client. 18 Plaintiff’s counsel is warned that the Court will not tolerate further vexatious 19 litigation tactics like those displayed in his motions and the deposition notice. The 20 federal courts are available to achieve the just, speedy, and inexpensive resolution of 21 genuine disputes. Fed. R. Civ. P. 1. Those goals cannot be achieved when parties or 22 counsel engage in accusatory and vexatious litigation practice rather than focusing on the 23 merits of the dispute. Plaintiff’s counsel is also admonished that he should cease tossing 24 out accusations of perjury and lies as though they were mere greetings. Courtesy, 25 respect, and civility are mandatory in this Court. 26 IT IS ORDERED: 27 1. Plaintiff’s motion for inherent sanctions (Doc. 15) is denied. 28 2. Plaintiff’s motion to disqualify counsel (Doc. 29) is denied. ‐ 2 ‐      1 3. Defendants’ motion to quash (Doc. 30) is granted. 2 Dated this 28th day of September, 2012. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ‐ 3 ‐ 

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