Marfut v. The Gardens of Gulf Cove POA, Inc et al

Filing 52

ORDER denying 44 Defendants' Motion for Leave to Appear Telephonically; denying 47 Plaintiff's Motion that Defendant, and Counsel, Randolph L. Smith Be Disallowed from Representing Co-Defendants pursuant to USC Title 26a, Rule 24 Ap pearance and Representation. The parties shall have up to and including February 5, 2018 to SHOW CAUSE as to why the PPTC should not cancelled and they should not be sanctioned for failure to comply with the Court's Orders, or, alternatively, to file a joint Case Management Report prior to close of business on February 5, 2018. Signed by Magistrate Judge Carol Mirando on 2/1/2018. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CHRISTINE E. MARFUT,
Plaintiff,
v.

Case No: 2:17-cv-595-FtM-38CM

THE GARDENS OF GULF COVE
POA, INC, JOHN ANDERSON,
BREEN LUCILLE, JACK
ARLINGHAUS, DAHL HERMAN,
FRED STREIF, NAMY
THOMPSON PL, STEPHEN W.
THOMPSON, JOSEPH NAJMY,
LOUIS NAJMY, RICHARD
WELLER, RANDOLF L. SMITH
and MICHAEL J. SMITH,
Defendants.
ORDER
This matter comes before the Court upon review of Defendants’ Motion for
Leave to Appear Telephonically (Doc. 44) filed on January 11, 2018 and Plaintiff’s
Motion that Defendant, and Counsel, Randolph L. Smith Be Disallowed from
Representing Co-Defendants pursuant to USC Title 26a, Rule 24 Appearance and
Representation (Doc. 47).
First, Defendants seek to appear telephonically at the Preliminary Pretrial
Conference (“PPTC”) scheduled for February 7, 2018.

Doc. 44.

The Court will

direct the parties to appear in person at the PPTC because Plaintiff is proceeding as

pro se. Nonetheless, the Court reminds the parties that they have not complied with
the Court’s Order to file a Case Management Report.

Doc. 41. Although the Court

ordered the parties on or before January 29, 2018 to file a Case Management Report,
the parties have not filed any.

Doc. 41 at 3.

Accordingly, the Court will order the

parties to show cause as to why the PPTC should not cancelled and they should not
be sanctioned for failure to comply with the Court’s Orders, or, alternatively, to file a
joint Case Management Report prior to close of business on February 5, 2018.
Next, Plaintiff’s motion seeks to disqualify counsel Randolph L. Smith from
representing Defendants Najmy Thompson, P.L., Stephen W. Thompson, Joseph
Najmy, Louis Najmy, Richard Weller, Randolph L. Smith and Michael J. Smith.
Doc. 50.

Plaintiff argues that as a named Defendant here, counsel Smith has a

conflict of interests with his clients, prosecuted a case against Plaintiff in state court
and may serve as a witness in this case.

Doc. 47 at 2.

Counsel Smith responds

Plaintiff’s motion does not comply with Local Rule 3.01(g) and lacks merit.

Doc. 50.

“The disqualification of one’s chosen counsel is an extraordinary measure that
should be resorted to sparingly.”

Metrahealth Ins. Co. v. Anclote Psychiatric Hosp.,

Ltd., 961 F. Supp. 1580, 1582 (M.D. Fla. 1997) (citations omitted). Court should not
disqualify counsel except “when absolutely necessary.”

Id. (citation omitted). The

party seeking to disqualify counsel bears the burden to establish grounds for the
disqualification.

Houston Specialty Ins. Co. v. Titleworkers of Sw. Fla., Inc., No.

2:15-cv-219-FtM-29MRM, 2016 WL 7130938, at *4 (M.D. Fla. Apr. 12, 2016) (citing

Great Am. Ins. Co. v. Gen. Contractors & Const. Mgmt., Inc., No. 07-21489-CIV, 2008
WL 1994857, at *1 (S.D. Fla. May 6, 2008)).

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Here, the Court finds Plaintiff does not establish any grounds for the
disqualification of counsel Smith.

Doc. 47; see id.

The professional conduct of the

attorneys admitted to practice before this Court is governed by the Model Rules of
Professional Conduct of the American Bar Association as modified and adopted by
the Supreme Court of Florida.

M.D. Fla. R. 2.04(d).

In contrast, as part of her

argument, Plaintiff relies on Rule 24 of the Rules of Practice and Procedure of the
United States Tax Court, which does not apply here.

Doc. 47 at 3; see Tax Court

Rule 24.
Plaintiff further refers to Rule 1.8(g) of the Model Rules of Professional
Conduct of the American Bar Association, which states:
A lawyer who represents two or more clients shall not participate in
making an aggregate settlement of the claims of or against the clients,
or in a criminal case an aggregated agreement as to guilty or nolo
contendere pleas, unless each client gives informed consent, in a writing
signed by the client. The lawyer’s disclosure shall include the existence
and nature of all the claims or pleas involved and of the participation of
each person in the settlement.
Model Rules of Prof’l Conduct R. 1.8(g) (2016).

Counsel Smith responds he complied

with this rule by obtaining informed consent in writing from each of his clients.
50 at 3.

Doc.

Lastly, Plaintiff asserts counsel Smith is a “potential” witness, which only

remains as an uncertain possibility at this point.

Doc. 47 at 2. Thus, the Court

finds Plaintiff does not meet her burden to present grounds for counsel Smith’s
disqualification and will not disqualify counsel Smith from representing his clients
here.

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ACCORDINGLY, it is hereby
ORDERED:
1.

Defendants’ Motion for Leave to Appear Telephonically (Doc. 44) is

DENIED.
2.

The parties shall have up to and including February 5, 2018 to SHOW

CAUSE as to why the PPTC should not cancelled and they should not be sanctioned
for failure to comply with the Court’s Orders, or, alternatively, to file a joint Case
Management Report prior to close of business on February 5, 2018.
3.

Plaintiff’s Motion that Defendant, and Counsel, Randolph L. Smith Be

Disallowed from Representing Co-Defendants pursuant to USC Title 26a, Rule 24
Appearance and Representation (Doc. 47) is DENIED.
DONE and ORDERED in Fort Myers, Florida on this 1st day of February,
2018.

Copies:
Counsel of record
Unrepresented parties

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