Federal Deposit Insurance Corporation v. Colony Corporate Centre, LLC et al

Filing 89

ORDER re 73 Amended MOTION to disqualify filed by Colony Corporate Centre, LLC, Joseph E. D'Jamoos. A hearing shall be held before the Hon. Sheri Polster Chappell at 9:30am., May 14, 2012, at the United States Courthouse and Federal Building , Courtroom 5D, in Fort Myers, Florida. The Defendants Colony Corporate Centre, LLC, and Joseph D'Jamoos' and the Plaintiff, South CRE Venture, LLC shall be prepared to present evidence and testimony regarding the issue of the disqualification of Henderson, Franklin, Starnes & Holt. Signed by Magistrate Judge Sheri Polster Chappell on 4/17/2012. (LMH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

SOUTH CRE VENTURE 2010-2,
LLC.,
PLAINTIFF,
V.

Case No: 2:10-CV-774-FtM-UASPC

COLONY CORPORATE CENTRE,
LLC, JOSEPH E. DJAMOOS,
PHILBIN BROTHERS LLC, WALL
SYSTEMS, INC. OF SOUTHWEST
FLORIDA, THE FOUNDATION OF
PELICAN MARSH, INC. and
VANDERBILT GALLERIA
CONDOMINIUM ASSOCIATION,
INC.
Defendants.
___________________________________/
ORDER
This matter comes before the Court on the Defendants Colony Corporate Centre, LLC,
and Joseph D'Jamoos' Amended Motion to Disqualify Henderson Franklin Starnes & Holt, PA.
(Doc. #73) filed on October 11, 2011. The Plaintiff, South CRE Venture, filed its Response in
Opposition (Doc. # 79) on October 31, 2011. The Motion to Disqualify was referred (Doc. # 88)
to this Court by the District Court for a Report and Recommendation on April 4, 2012. The
Motion is now ripe for the Court’s review.
Disqualification of a party's chosen counsel is an extraordinary remedy and should be
resorted to sparingly.” Quail Cruises Ship Management Ltd. v. Agencia De Viagens CVC
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Limitada, 2010 WL 2926042 *3 (S.D. Fla. July 23, 2010) (citing Manning v. Cooper, 981 So.2d
668, 670 (Fla. 4th DCA 2008); Singer Island Ltd. v. Budget Constr. Co., 714 So.2d 651, 652
(Fla. 4th DCA 1998)). “The party moving to disqualify counsel bears the burden of proving the
grounds for disqualification.” In re BellSouth Corp., 334 F.3d 941, 961 (11th Cir.2003).
“Because a party is presumptively entitled to the counsel of his choice, the right may be
overridden only if ‘compelling reasons' exist.” Id. (quoting Texas Catastrophe Property Ins.
Ass'n v. Morales, 975 F.2d 1178, 1181 (5th Cir.1992). Pursuant to Florida law, a movant must
establish 1) the existence of a prior attorney-client relationship, and 2) that the matters in the
pending suit are substantially related to the previous matter. Shivers v. Int'l Bd. Of Elc. Workers
Local Union, 349, 262 F. Appx. 121, 126 (11th Cir.2008); see also State Farm Mut. Auto. Ins.
Co.v . K.A.T., et.al.,575 So.2d 630, 633-34 (Fla.1991).
The Defendant argues that the Plaintiff’s Counsel is on violation of the Florida Bar’s
Rules of Professional Conduct Rules 4-1.7 and 4-1.9. Rule 4-1.7 prohibits a lawyer from
representing one client if the representation of that client is directly adverse to another client.
Rule 4-1.9 states in pertinent part:
a lawyer who has formerly represented a client shall not:
(a) represent another person in the same or 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; or
(b) use information relating to the representation to the disadvantage of the
former client except as these rules would permit or require with respect to a
client or when the information has become generally known; or
(c) reveal information relating to the representation except as these rules would
permit or require with respect to a client.

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Having reviewed the Motion and the Response the Court will necessarily hold a hearing on the
matter and hear argument from both Parties regarding the Motion.
Accordingly, it is now
ORDERED:
A hearing shall be held before the Undersigned at 9:30am., May 14, 2012, at the United
States Courthouse and Federal Building, Courtroom 5D, in Fort Myers, Florida. The Defendants
Colony Corporate Centre, LLC, and Joseph D'Jamoos' and the Plaintiff, South CRE Venture,
LLC shall be prepared to present evidence and testimony regarding the issue of the
disqualification of Henderson, Franklin, Starnes & Holt.
DONE and ORDERED in Fort Myers, Florida this 17th Day of April, 2012.

Copies: All Parties of Record

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