Mitchell v. Hunt et al

Filing 184

ORDER overruling 160 --objections; adopting 158 --report and recommendation; denying 81 --motion to disqualify counsel. Signed by Judge Steven D. Merryday on 3/27/2017. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SCOTT MITCHELL,
Plaintiff,
v.

CASE NO. 8:15-cv-2603-T-23TGW

MARY CATHERINE HUNT, et al.,
Defendants.
____________________________________/

ORDER
Scott Mitchell moves (Doc. 81) under seal to disqualify Barry Cohen, the
defendants’ counsel of record. A January 9, 2017 report (Doc. 158) recommends
denying Mitchell’s motion because Cohen’s representation of the defendants violates
no Florida rule of professional conduct, creates no appearance of impropriety, and
violates no duty of loyalty.
The report states that Mitchell:
has not identified any specific information which supports his
contention that the credibility and character issues in the [2004 FTC
investigation] ‘materially overlap’ with this case . . . . [Mitchell] has
not identified any information disclosed during the [2004 FTC
investigation] that Cohen will use to the plaintiff’s disadvantage in this
litigation. Therefore, the plaintiff has not met his burden to establish a
violation of Rule 4-1.9(b) [Florida Bar Code of Professional
Responsibility].

(Doc. 158 at 14, 18)

Mitchell’s principal objection (Doc. 160) to the report and recommendation
concerns an October 27, 2016 order (Doc. 145) denying Mitchell’s emergency motion
(Doc. 140) to hold an in camera hearing on the motion to disqualify. The magistrate
judge determined (Doc. 145) that Mitchell failed to show good cause to exclude the
public from the hearing.* Mitchell argues that the denial of an in camera hearing
prevented his disclosing information likely to prove that Cohen’s representation of
the defendants presents a conflict of interest.
First, under Rule 72(a), Federal Rules of Civil Procedure, a party must object
within fourteen days to a magistrate judge’s order. The failure to object timely
prevents a party’s successfully “assign[ing] as error” a purported defect in the
magistrate judge’s non-dispositive order. Thomas v. Arn, 474 U.S. 140, 152–53
(1985). Because Mitchell failed to object timely, he cannot successfully challenge the
magistrate judge’s order.
Second, a July 5, 2016 order granted (Doc. 78) Mitchell’s motion (Doc. 77)
for leave to move under seal (Doc. 81) to disqualify. Thus Mitchell was afforded a
confidential forum in which to supplement his motion (Doc. 81) with relevant
evidence. The defendants respond that Mitchell fails to support the motion with
specific information about Mitchell’s character and credibility sufficient to

*

“[T]he plaintiff’s request to seal the hearing at this late hour [two days before the hearing]
underscores that the need for an in camera hearing is lacking.” (Doc. 145 at 5)

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demonstrate a conflict of interest. Mitchell’s reply (Doc. 123) fails to address the
defendants’ argument about the lack of specific information.
At the motion hearing (Doc. 146), the magistrate judge repeatedly asked
Mitchell’s counsel whether Mitchell could offer any specific information likely to
demonstrate a conflict of interest. Mitchell failed to answer satisfactorily and failed
to supplement the facts after the hearing.
Third, Mitchell argues (Doc. 160 at 4) that the absence of a private forum
“chilled” his ability to confidentially support his motion to disqualify Cohen. A
district court is not required to consider evidence not presented to the magistrate
judge. Williams v McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009). Because Mitchell
waived the “chilling” effect argument by failing to raise the issue at the hearing,
Mitchell cannot use the argument as the basis on which to object to the report. In
any event, the “chilling” argument lacks merit.
The defendants’ objection (Doc. 160) to the January 9, 2017, report is
OVERRULED, the report (Doc. 158) is ADOPTED, and the motion (Doc. 81) to
disqualify Cohen is DENIED.
ORDERED in Tampa, Florida, on March 27, 2017.

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