3Lions Publishing, Inc. v. Scriptnetics, LLC
ORDER denying 19 Defendant's Motion to Disqualify Counsel. Signed by Judge James S. Moody, Jr on 9/25/2014. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
3LIONS PUBLISHING, INC.,
Case No: 8:14-cv-1210-T-30TBM
THIS CAUSE comes before the Court upon Defendant’s Motion to Disqualify
Counsel with Incorporated Memorandum of Law (Dkt. 19) and Plaintiff 3Lions Publishing,
Inc.’s Response (Dkt. 21).
The Court, having reviewed the motion, response, and
otherwise being advised in the premises, concludes that the motion should be denied.
On May 21, 2014, Plaintiff 3Lions Publishing, Inc. (“3Lions”), through its counsel,
Carlos Leyva (“Leyva”), filed its complaint against Defendant Scriptnetics, LLC
(“Scriptnetics”), alleging copyright infringement under the United States Copyright Act of
1976, 17 U.S.C. §§ 101 et seq., and unfair competition under 15 U.S.C. § 1125.
Specifically, 3Lions alleged that Scriptnetics infringed upon its copyright “by adapting
[3Lions’] Website content…and releasing said adaptation…on [Scriptnetics’] company
website”. (Dkt. 1).
Scriptnetics argues that Leyva should be disqualified from representing 3Lions
because Leyva is a necessary and central witness in the case.
suggests that Leyva launched the website in question, Scriptnetics argues that his
deposition is essential. Scriptnetics asserts that Leyva is President of 3Lions and its sole
owner, arguing that Leyva and 3Lions are essentially “one and the same.” (Dkt. 19).
Scriptnetics also argues that Florida Bar Rule 4-3.7 (“Rule 4-3.7”) and Rule 28 of the
Federal Rules of Civil Procedure (“Rule 28”) prevent Leyva from serving as 3Lions
In response, 3Lions argues that Leyva is not the sole owner or officer of 3Lions and
asserts that there are other officers of 3Lions that are capable of serving as fact witnesses.
3Lions also states that testimony regarding the maintenance of 3Lions’ website can be
obtained from 3Lions’ Chief Technology Officer, who is responsible for website
maintenance. 3Lions argues that Scriptnetics fails to show compelling reasons that Leyva
should be disqualified.
The party bringing the motion to disqualify 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, that right may be overridden
only if ‘compelling reasons’ exist.” Id. Disqualification “is a harsh sanction, often
working substantial hardship on the client” and should therefore “be resorted to sparingly.”
Norton v. Tallahassee Mem’l Hosp., 689 F.2d 938, 941 n.4 (11th Cir. 1982). “A motion
to disqualify brought by opposing counsel ‘should be viewed with caution ... for it can be
misused as a technique of harassment.’” See Herrmann v. GutterGuard, Inc., 199 Fed.
App’x 745, 752, 2006 WL 2591878, at *6 (11th Cir. 2006) (citation omitted). 1
Two sources of authority govern a motion to disqualify counsel – the local rules of
the court in which the attorney appears and the federal common law. See id. First, the
Court will analyze the local rules. The Middle District of Florida Local Rules provide that
“[t]he professional conduct of all members of the bar of this Court … shall be governed by
the Model Rules of Professional Conduct of the American Bar Association as modified and
adopted by the Supreme Court of Florida to govern the professional behavior of the
members of the Florida Bar.” See M.D. Fla. Local R. 2.04(d). Scriptnetics argues that
Leyva’s disqualification is mandated under Rule 4-3.7 of the Florida Rules of Professional
Conduct. Rule 4-3.7 states:
(a) When Lawyer May Testify. A lawyer shall not act as
advocate at a trial in which the lawyer is likely to be a
necessary witness on behalf of the client except where: (1)
the testimony relates to an uncontested issue; (2) the
testimony will relate solely to a matter of formality and
there is no reason to believe that substantial evidence will
be offered in opposition to the testimony; (3) the testimony
relates to the nature and value of legal services rendered in
the case; or (4) disqualification of the lawyer would work
substantial hardship on the client.
3Lions argues that the facts of the instant case render Rule 4-3.7 inapposite. The
Court agrees. Rule 4-3.7 explicitly applies to circumstances in which an attorney “is likely
to be a necessary witness on behalf of the client.” Fla. Bar Reg. Rule 4-3.7 (emphasis
11th Cir. R. 36-2 instructs that while an unpublished decision has no binding
precedential value, it may be cited as persuasive authority.
added). Rule 4-3.7 is focused on the prejudice to the client; therefore, where the client
does not intend to call his attorney as a witness, Rule 4-3.7 is not implicated. See Merrett
v. Liberty Mut. Ins. Co., 3:10-CV-1195-J-34MCR, 2013 WL 2710717, at *2 (M.D. Fla.
June 12, 2013) aff’d, 3:10-CV-1195-J-34MCR, 2013 WL 5330258 (M.D. Fla. Sept. 23,
2013) (citing Etkin & Co., Inc. v. SBD LLC, 11–21321–CIV, 2012 WL 5398966, at *2
(S.D. Fla. Nov.5, 2012)). Based on this reasoning, Scriptnetics’ reference to Dudley v.
Wilson, 13 So. 2d 145, 146 (Fla. 1943), is inapposite. Scriptnetics’ reliance on Fleitman
v. McPherson, 691 So. 2d 37, 38 (Fla. 1st DCA 1997), is also misplaced because the lawyer
in Fleitman was found to be a likely “featured witness” at trial for his own client. Here,
3Lions has expressed no intention to call Leyva as a witness. Scriptnetics’ authority,
therefore, does not support disqualification of Leyva. See AlliedSignal Recovery Trust v.
AlliedSignal, Inc., 934 So. 2d 675, 680 (Fla. Dist. Ct. App. 2006).
Next, the Court must consider federal common law. Relevant federal common law
requires the moving party to show “compelling reasons” warranting disqualification of
counsel. See In re BellSouth Corp., 334 F.3d at 961. Scriptnetics argues that Leyva is a
necessary witness because he and 3Lions are “essentially…one and the same”, however,
all of Scriptnetics’ arguments are belied by 3Lions’ showing that there are alternate
witnesses available for each of Scriptnetics’ contentions. 3Lions has offered evidence that
there are several other officers are capable of testifying as to the subject matter of
Scriptnetics arguments and affirmative defenses.
3Lions has also illustrated the
availability of several corporate witnesses that may be called pursuant to Fed. R. Civ. Pro.
30(b)(6). Further, because Scriptnetics’ argument for Leyva’s disqualification based on
Rule 28 is premised on his deposition being “essential”, 3Lions’ evidence regarding the
availability of other witnesses refutes this argument as well. In light of 3Lions’ evidence
regarding alternate witnesses, Scriptnetics has failed to meet its burden of showing
compelling circumstances that warrant Leyva’s disqualification. Accordingly, the motion
must be denied.
It is therefore ORDERED AND ADJUDGED that:
Defendant’s Motion to Disqualify Counsel with Incorporated Memorandum
of Law (Dkt. 19) is DENIED.
DONE and ORDERED in Tampa, Florida, this 25th day of September, 2014.
Copies furnished to:
Counsel/Parties of Record
S:\Even\2014\14-cv-1210 mt disqualify counsel.docx
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