Sea Star Line, LLC et al

Filing 611

ORDER denying #551 Motion to Disqualify Counsel.. Signed by Magistrate Judge Monte C. Richardson on 2/6/2017. (ADM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
IN ADMIRALTY
In the matter of the Complaint
of

CASE NO. 3:15-cv-1297-J-20MCR

Sea Star Line, LLC, d/b/a TOTE Maritime
Puerto Rico, as Owners; and TOTE
Services, Inc., as Owner pro hac vice of
the S.S. EL FARO for Exoneration from
or Limitation of Liability.
________________________________/
ORDER
THIS CAUSE is before the Court on Petitioners’ Motion to Disqualify Arnold
& Itkin, LLP from Representing Multiple Claimants (Hargrove, Solar-Cortes &
Thomas) (“Motion”) (Doc. 551), Claimants Mildred Solar Cortes’s, Tinisha Renee
Thomas’s, and Terrie Hargrove’s Response thereto (Doc. 568), Petitioners’ Reply
(Doc. 586), and Claimants’ Sur-Reply (Doc. 592).1 Although Petitioners filed a
Request for Oral Argument on the Motion (see Doc. 552), oral argument is not
necessary to reach a decision, and, therefore, this request is denied.
Petitioners move for disqualification of the law firm Arnold & Itkin, LLP
(“A&I”), claiming a non-waivable conflict of interest in representing three of the
five remaining wrongful death claimants, Hargrove, Solar-Cortes and Thomas,
under Florida Rule of Professional Conduct 4-1.7(b)(3), due to the limited fund to

1

The Reply and the Sur-Reply were filed pursuant to the Court’s January 19,
2017 Endorsed Order. (Doc. 575.)

be shared amongst the remaining claimants.2 Claimants respond, in relevant
part:
The parties are currently litigating and this Court has not decided
whether the Petitioners’ liability relating to the deaths of Mrs.
Hargrove’s, Mrs. Solar Cortes’s, and Mrs. Thomas’s (collectively,
“A&I’s Clients”) husbands is limited to the limitation fund to which
Petitioners stipulated. Thus the purported conflict— “adverse and
competing interests with respect to damages and distribution of the
limitation fund,” —is not a “direct” conflict or a conflict presenting
“substantial risk” of material limitation in A&I’s representation under
Florida Rule of Professional Responsibility 4-1.7[.] It is instead a
hypothetical conflict that can be waived should it ever ripen into an
actual Rule 4-1.7 conflict.3 Now and for the foreseeable future, A&I’s
Clients’ “interests are very much aligned concerning [the
Petitioners’] liability and whether the Limitation Act applies.”
(Doc. 568 at 2 (internal citations omitted).) In their Sur-Reply, Claimants advise
that the purported conflict has been waived by each client in writing. (Doc. 592 at
1 & n.2 (“A&I will provide the waivers to the Court in camera should the Court
request them.”).) Claimants further explain that this conflict emerges only if:
(i) this Court determines after a trial that the Petitioners may limit
their liability, (ii) that the Petitioners have properly funded the
limitation fund, (iii) that the value of the limitation-fund is inadequate
to cover A&I’s Clients’ claims, (iv) that A&I’s Clients may not pursue
their individual claims against the Petitioners in state courts; and (v)
if other courts determine that A&I’s Clients do not have legally or
factually viable claims against parties other than the Petitioners for

2

Petitioners state that the relief sought in their present Motion equally applies to
the law firm Mombach, Boyle, Hardin & Simmons, P.A., which also represents
Claimants in this action.
3

A&I has apprised its Clients of this hypothetical conflict. A&I’s Clients desire
that A&I continue their representation and A&I will continue to advocate for successful
resolution of each client’s independent claims against the Petitioners and others.
2

their losses.
(Id. at 1 (footnotes omitted).)
The Court agrees with Claimants that the purported conflict is merely
hypothetical at this point of the proceedings. See In re SeaStreak, LLC, Civ. No.
2:13-00315 (WJM), 2014 WL 1272125, *6 (D.N.J. Mar. 27, 2014) (“The Court
acknowledges the possibility that a conflict of interest may arise later, during the
damages portion of the trial, if the limitation fund is upheld. . . . Although
Claimants could eventually have competing interests depending upon the
outcome of several issues, their interests are very much aligned concerning
SeaStreak’s liability and whether the Limitation Act applies.”). In Petitioners’ own
words, “[t]he representation of Claimants Hargrove, Solar-Cortes and Thomas
does involve the assertion of an adverse position to each other before this
Honorable Court once the litigation progresses to the damages phase.” (Doc.
551 at 6-7 (italics added); see also id. at 10 (“Arnold & Itkin, LLP cannot provide
zealous and effective representation to these Claimants once the case reaches
the damages portion as these three (3) claimants will be competing against each
other in an effort to maximize the value of their respective claims.”) (italics
added).) Also, as in SeaStreak, this Court is concerned that the present Motion,
in which Petitioners assert there is a conflict on behalf of opposing counsel’s
clients, was likely made for strategic purposes. 2014 WL 1272125 at *6. After a
careful consideration of the parties’ positions and the applicable rules and law,
3

the Court does not find that Petitioners have met their burden of proving that
compelling reasons exist to disqualify Claimants’ counsel. See In re: Am. Marine
Corp. & Am. Workboats, Inc., Case No.: 6:14-cv-1304-Orl-18GJK, 2015 WL
12915705, *2 (M.D. Fla. June 25, 2015) (“Disqualification of counsel is an
extraordinary remedy, and such motions are generally viewed with skepticism
because they are often made for tactical purposes. The Shipowners, as the
moving party, have the burden of proving the grounds for disqualification.
Because a party is presumptively entitled to the counsel of his choice, that right
may be overriden only if compelling reasons exist.”) (internal citations and
quotation marks omitted).
Accordingly, it is ORDERED:
The Motion (Doc. 551) is DENIED.
DONE AND ORDERED at Jacksonville, Florida, on February 6, 2017.

Copies to:
Counsel of Record

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