Jeudine v. City of Homestead, Florida et al
Filing
94
ORDER denying 69 Motion to Disqualify Counsel and for Sanctions. Signed by Magistrate Judge Jonathan Goodman on 3/9/2016. (tr00)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 14‐23896‐CIV‐MARTINEZ/GOODMAN
ROBERTO JEUDINE,
v.
Plaintiff,
CITY OF HOMESTEAD, FLORIDA,
THOMAS SURMAN, VIVIAN
MANACH, and DENNIS MAYTAN,
Defendants.
________________________________/
ORDER ON MOTION FOR SANCTIONS AND TO DISQUALIFY COUNSEL
United States District Judge Jose E. Martinez referred [ECF No. 77] to the
Undersigned Plaintiff’s Motion for Sanctions and to Disqualify Counsel (the “Motion”)
[ECF No. 69] against Defendants’ counsel Eric Stettin. The Undersigned has reviewed
the Motion, Defendants’ response in opposition [ECF No. 72], Plaintiff’s reply [ECF No.
74], Defendants’ sur‐reply [ECF No. 87], and the abundant exhibits submitted on the
record, as well as held oral argument on the Motion [ECF No. 89]. For the reasons set
forth below, the Undersigned denies Plaintiff’s Motion.1
1
A United States Magistrate Judge has the authority to enter an order denying
sanctions (as opposed to a report and recommendations). QBE Ins. Corp. v. Jorda
Enterprises, Inc., 277 F.R.D. 676, 683 n. 2 (S.D. Fla. 2012). Additionally, an order on the
disqualification of counsel is a non‐case dispositive matter that may be handled by a
magistrate judge as a pretrial duty under 28 U.S.C. § 636(b)(1)(A). Estate of Jones v.
Beverly Health & Rehab. Servs., Inc., 68 F. Supp. 2d 1304 (N.D. Fla. 1999). See also Advanced
I.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Roberto Jeudine filed a federal court lawsuit in this district against the
City of Homestead (the “City”) in 2013 (the “First Case”), alleging an unlawful, racially‐
motivated termination from his job with the City. (Case No. 13‐23307‐CIV‐JEM).
Specifically, the City terminated Plaintiff from his job because it contended that Plaintiff
hit another employee’s vehicle while driving a City vehicle and failed to report it,
apparently because there were no witnesses. Plaintiff denied causing the collision and
denied the City’s allegation. Plaintiff was arrested, but the charges were dismissed.
The District Court dismissed the lawsuit without prejudice. Slightly more than a
year after the First Case was filed (and approximately a month after the lawsuit was
dismissed), Plaintiff filed a second lawsuit against the City (the “Second Case”). This
lawsuit added new claims against the City and also added several individual
Defendants. These individual Defendants are represented by the same counsel who
represented the City in the First Case and who represents all Defendants in the current
case ‐‐ Attorneys Alan Fertel, Eric Stettin, Alison Smith and Joanna Doerful, all from the
Weiss Serota Helfman Cole Bierman & Popok, P.L. law firm.
Mfg. Tech., Inc. v. Motorola, Inc., No. CIV99–01219PHXMHMLOA, 2002 WL 1446953, *1
n. 1 (D. Ariz. July 2, 2002) (“A magistrate judgeʹs lawful authority to rule on a
disqualification motion falls within the ‘pretrial duties’ or ‘additional duties’ delegated
to magistrate judges under the Federal Magistrates Act.”).
2
On August 27, 2013, Plaintiff and his wife, Michelange Jeudine, (collectively, the
“Debtors”) filed for Chapter 7 bankruptcy in the United States Bankruptcy Court for the
Southern District of Florida. In re Roberto Jeudine & Michelange Jeudine (In re Jeudine), No.
13‐30330‐AJC, ECF No. 1 (Bankr. S.D. Fla. Aug. 27, 2013). Debtors were represented by
private bankruptcy counsel, Matthew Mazur Jr., and the Chapter 7 Trustee, Ross
Hartog (the “Trustee”), was represented by Zach Shelosmith. In re Jeudine, No. 13‐30330‐
AJC (Bankr. S.D. Fla. 2013). On March 11, 2014, Attorney Kelsay Patterson was
appointed “Special Counsel for Trustee” for the purpose of prosecuting Plaintiff’s claim
in this case. In re Jeudine, No. 13‐30330‐AJC, ECF No. 41 (Bankr. S.D. Fla. Mar. 11, 2014).
In March of 2015, defense counsel Eric Stettin became aware of the bankruptcy
petition, which still remained open. [ECF No. 72‐1, pp. 1‐2]. Stettin thereafter contacted
the Trustee’s counsel, Shelosmith, to discuss the matter. [Id., at pp. 2‐3]. Stettin and
Shelosmith negotiated a settlement of $7,500 on April 3, 2015. [Id., at. p. 4]. Defendants
filed a Notice of Settlement in the District Court on that day. [ECF No. 59]. The Trustee
filed a Motion to Terminate Special Counsel on April 5, 2015, citing “irreconcilable
differences” and alleging, among other things, that Patterson did not timely advise the
Trustee of significant events in the case. In re Jeudine, No. 13‐30330‐AJC, ECF No. 72
(Bankr. S.D. Fla. Apr. 5, 2015). The District Court entered an order administratively
closing this case and denying all pending motions as moot on April 7, 2015. [ECF No.
3
67]. The Trustee filed a Motion to Approve Settlement with the Bankruptcy Court on
April 8, 2015. In re Jeudine, No. 13‐30330‐AJC, ECF No. 78 (Bankr. S.D. Fla. Apr. 8, 2015).
A hearing was held before the Bankruptcy Court on May 5, 2015, and Judge Jay
Cristol denied the Motion to Approve Settlement without prejudice and granted in part
the Motion to Terminate Special Counsel.2 In re Jeudine, No. 13‐30330‐AJC, ECF No. 100
(Bankr. S.D. Fla. July 23, 2015) (transcript of May 5, 2015 hearing). Patterson, however,
remained counsel for Plaintiff in this case because Judge Cristol’s ruling required the
Trustee to pay him his attorney’s fees if he were to be terminated. In re Jeudine, No. 13‐
30330‐AJC, ECF No. 88 (Bankr. S.D. Fla. May 13, 2015). In October of 2015, Debtors, the
Trustee and Patterson reached a compromise whereby Plaintiff’s claim was re‐
purchased by Plaintiff with 50% of any proceeds from the claim to be paid to the
Trustee. In re Jeudine, No. 13‐30330‐AJC, ECF No. 106 (Bankr. S.D. Fla. October 28, 2015).
After Defendants noticed the settlement that had been negotiated between Stettin
(on behalf of Defendants) and Shelosmith (on behalf of the Trustee), Patterson (on
2
At the February 4, 2016 hearing before the Undersigned [ECF No. 89], Patterson
argued that Judge Cristol did not approve the settlement because he had held a
negative impression of the negotiation because it excluded Patterson. The Undersigned
has reviewed the entire transcript of that hearing [ECF No. 91‐1] and now understands
that Judge Cristol’s on‐the‐record comments focused almost exclusively on the dollar
amount of the proposed settlement ,rather than the identities of the attorneys involved
in the negotiations. Judge Cristol made one brief, offhand comment about the
settlement communications and Patterson’s non‐involvement in them, but that was
hardly the focus of the hearing.
4
behalf of Plaintiff) filed the present Motion for Disqualification and Sanctions Against
Defendants’ Counsel. [ECF No. 69].
II.
APPLICABLE LEGAL PRINCIPLES AND ANALYSIS
Plaintiff asserts violations of Florida Rule of Professional Conduct 4‐4.1
(concerning truthfulness to others), 4‐4.2 (concerning direct communication with a
represented party), and 4‐8.4 (regarding engaging in dishonesty, fraud or deceit or
knowingly violating the rules or assisting others with violating the rules). [Id.]. The
underlying theory of Plaintiff’s motion is (1) that Defendants’ counsel (specifically
Stettin) made numerous false statements (and engaged in other professional
misconduct) to reach the settlement agreement; and (2) that Stettin improperly
negotiated the settlement with Shelosmith rather than with Patterson. Plaintiff alleges
that this alleged professional misconduct requires the Court to impose the severe
penalties of disqualifying Defendants’ counsel and imposing other sanctions under the
Court’s inherent authority.
For the reasons outlined below, the Undersigned denies the motion because
Plaintiff has not met his burden of proving the violation of any rules of professional
conduct, and therefore, the imposition of disqualification and further sanctions is
inappropriate.
“Disqualification of a partyʹs chosen counsel is an extraordinary remedy not
generally in the public interest—a remedy that should be employed only sparingly.”
5
First Impressions Design & Mgmt. Inc. v. All That Style Interiors Inc., 122 F. Supp. 2d 1352,
1354‐55 (S.D. Fla. 2000) (noting that “disqualification of a partyʹs chosen counsel is an
extraordinary remedy not generally in the public interest ‐ a remedy that should be
employed only sparingly”). “The party bringing the motion to disqualify bears the
burden of proving grounds for disqualification.” Hermann v. GutterGuard, Inc., 199 F.
Appʹx 745, 752 (11th Cir. 2006) (citing In re Bellsouth Corp., 334 F.3d 941, 961 (11th Cir.
2003)).
A clientʹs choice of counsel is entitled to “substantial deference,” and “any
movant seeking to sever that relationship through disqualification must meet a high
standard of proof.” Fenik v. One Water Place, No. 3:06cv514/RV/EMT, 2007 WL 527997, at
*4 (N.D. Fla., Feb. 14, 2007). “Because a party is presumptively entitled to the counsel of
his choice, that right may be overridden only if ‘compelling reasons’ exist.” Id.
“When a motion to disqualify is based on an allegation of ethical violation, the
court may not simply rely on a general inherent power to admit and suspend attorneys,
without any limit on such power.” Suchite v. Kleppin, 784 F. Supp. 2d 1343, 1344 (S.D.
Fla. 2011) (internal quotations omitted). “The court must clearly identify a specific Rule
of Professional Conduct which is applicable to the relevant jurisdiction and must
conclude that the attorney violated that rule in order to disqualify the attorney.” Id. “An
order involving the disqualification of counsel must be tested against the standards
imposed by the [Florida Bar] Rules of Professional Conduct.” Id. at 1346 (citing Estright
6
v. Bay Point Improvement Assʹn, Inc., 921 So.2d 810, 811 (Fla. 1st DCA 2006); quoting
Morse v. Clark, 890 So.2d 496, 497 (Fla. 5th DCA 2004)).
In addition to seeking disqualification for the alleged violations of these rules of
professional conduct, Plaintiff also seeks sanctions pursuant the Court’s inherent
authority.3 Federal courts have inherent power to impose sanctions for conduct that
threatens the integrity of the judicial process. See Chambers v. NASCO, Inc., 501 U.S. 32,
44 (1991). A court must fashion a sanction that not only punishes the wrongdoer but
also deters future misconduct. Belak v. American Eagle, Inc., No. 99‐3524‐CIV, 2001 WL
253608, at *5 (S.D. Fla. Mar. 12, 2001). The court’s arsenal of sanctions includes a
dismissal of the case and the assessment of attorney’s fees. Id. (citing Chambers, 501 U.S.
at 45).
“The key to unlocking a court’s inherent power is a finding of bad faith.” Barnes
v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998). The threshold of bad faith under a court’s
inherent power “is at least as high as the threshold of bad faith conduct for sanctions
3
Plaintiff does not specify the legal authority under which he seeks sanctions (e.g.,
Federal Rule 11, 28 U.S.C. § 1927, etc.). Section 1927 provides that “[a]ny attorney . . .
who so multiplies the proceedings in any case unreasonably and vexatiously may be
required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees
reasonably incurred because of such conduct.” 28 U.S.C. § 1927. Section 1927 clearly
does not fit the nature of Plaintiff’s accusations, so the Court will not use this as a basis
for analysis. Additionally, Federal Rule 11 includes a “safe harbor” provision whereby
the movant must first serve the motion on opposing counsel to allow for the alleged
conduct to be corrected before filing the motion with the Court. Plaintiff does not certify
that this provision was complied with here. Accordingly, it appears that Plaintiff is
seeking sanctions under the Court’s inherent authority.
7
under 28 U.S.C. § 1927.” Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230, 1252.
Courts should exercise this power with restraint and discretion. See Chambers, 501 U.S.
at 43.
Plaintiff’s primary complaint relates to the effort by Defendants (through Stettin)
to settle Plaintiff’s claim for a nominal dollar amount by negotiating directly with the
Trustee’s counsel to the exclusion of special counsel, Patterson.
First, Plaintiff accuses Stettin of directly contacting represented parties such as
the Trustee in violation of Florida Rule of Professional Conduct 4‐4.2. [ECF No. 69, p. 5].
However, there is no evidence to support this accusation. In fact, the evidence that has
been presented is to the contrary. For instance, the affidavit from Stettin explicitly states
that he communicated directly with “Trustee’s Attorneys” and “[a]t no time . . .
communicated directly with Trustee Ross Hartog or with Roberto Jeudine[.]” [ECF No.
72‐1, pp. 2‐3]. Plaintiff presents no evidence, beyond the bare accusations in the motion,
to contradict this statement. Rather, Plaintiff’s only evidence to support this accusation,
an exhibit titled “Exhibit ex parte communications from stettin to client” [ECF No. 75‐3],
is an email chain of communications between Stettin and the Trustee’s attorneys ‐‐ not
communications with either the Trustee or Plaintiff personally.
Second, beyond this accusation of improper communication, Plaintiff’s primary
issue boils down to whether it was unethical for Stettin to contact Trustee’s counsel
without also contacting special counsel (Patterson and Wendell Locke), given that
8
special counsel were intimately involved in litigating this lawsuit. In fact, Plaintiff filed
a Florida Bar complaint against Stettin concerning this very issue.4
The Florida Bar investigated Plaintiff’s complaint and ultimately concluded that
“[t]here is insufficient evidence . . . that Mr. Stettin has violated any of the rules adopted
by the Supreme Court of Florida which govern attorney discipline.” [ECF No. 87‐1, p.
2]. In that decision, the Florida Bar stated that “Mr. Stettinʹs contact with Mr. Shelosmith
about the civil litigation and his clientʹs willingness to discuss a nominal settlement was
perfectly appropriate.” [Id., at p. 1]. The Florida Bar explained that when a petitioner
files for Chapter 7 bankruptcy, a trustee is appointed and any pre‐petition causes of
action belong to the trustee who can settle or sell those claims in his discretion, in order
to pay creditors. [Id.]. Thus, it is entirely appropriate from an ethical standpoint for
Defendants (through Stettin) to have contacted representatives of the Trustee to
negotiate a settlement in this case. The Undersigned adopts this same analysis.
Plaintiff has not called to the Court’s attention any legal authority which would
classify Stettin’s settlement negotiation with the Trustee’s counsel as unethical,
unprofessional or in any way inappropriate.
4
It appears as though Plaintiff, through his counsel, Patterson, who filed the
motion, prematurely disclosed the Florida Bar investigation of Stettin before the
investigation was concluded by mentioning the existence of the grievance in the reply
memorandum [ECF No. 74, p. 2]. However, with the sur‐reply memorandum filed after
the investigation was complete, Defendants included a copy of the Florida Bar’s letter
closing that investigation. [ECF No. 87‐1].
9
Of course, nothing prevented Stettin from contacting special counsel and, in
retrospect, it may well have been a good idea to have done so. However, it appears as
though Stettin had his reasons for wanting to deal only with the Trustee’s counsel. First,
there appears to be a history of bad blood between Stettin’s law firm and Patterson’s
law firm. Second, it appears as though Patterson and Locke did not timely advise
Trustee’s counsel that they had filed the Second Case. [ECF No. 75‐4, pp. 15‐16].
Furthermore, Shelosmith sent an email to Debtors’ bankruptcy counsel, Mazur,
describing Patterson as having “gone ‘rogue’” [Id., at p. 15], and likewise advised Judge
Cristol of this at the bankruptcy hearing [ECF No. 91‐1, p. 7].
Nonetheless, Stettin’s actions do not constitute sanctionable conduct and there is
no factual or legal basis to disqualify Stettin’s firm merely because they contacted an
attorney they were allowed to contact for settlement discussion purposes.
Additionally, Plaintiff’s argument ignores the critical point that the Trustee’s
counsel could have, himself, contacted Patterson and Locke to discuss the settlement
offer from Stettin. After all, it was the Trustee who retained them as special counsel
and for whatever reasons, the Trustee’s counsel also did not find it necessary to discuss
the settlement offer with the very lawyers the Trustee retained. Therefore, in practical
terms, Patterson is, in effect, accusing his own client ‐‐ the Trustee ‐‐ of also acting
inappropriately. Again, however, Plaintiff offers no legal basis for concluding that any
unethical conduct occurred.
10
Beyond this unfounded primary accusation, Plaintiff also accuses Stettin of
falsely advising Trustee’s counsel that Judge Martinez was going to hold a hearing on
Defendants’ summary judgment motion on April 6, 2015. [ECF No. 69, p. 3]. Although
Plaintiff has submitted an email from Shelosmith to Debtors’ bankruptcy counsel,
Mazur, mentioning ‐‐ incorrectly ‐‐ this supposed April 6 hearing [ECF No. 75‐4, p. 16],
Shelosmith later submitted an affidavit explaining that there had been a
miscommunication and that the information provided was actually concerning an April
6 deadline for filing a summary judgment motion [ECF No. 72‐8]. Furthermore, Stettin
submitted a declaration representing that he never communicated to the Trustee
personally and likewise never told Trustee’s counsel that there was a hearing on April
6. [ECF No. 72‐1].
At the hearing before the Undersigned, special counsel suggested that Stettin and
Shelosmith are now covering up, implicitly accusing both of them of committing
perjury. [ECF No. 89]. Patterson presents no proof of this however, and even Locke
conceded the possibility that an email incorrectly describing April 6 as a hearing date
rather than a filing deadline had been mistakenly sent [Id.]. I am not prepared to
disqualify or sanction counsel based on speculation contradicted by sworn statements.
11
Accordingly, for the above reasons, the Undersigned denies Plaintiff’s motion to
disqualify counsel and for sanctions. The Undersigned understands that Patterson and
Locke may feel excluded, but the decision to not include them in settlement
negotiations is not an ethical violation or grounds for sanctions.
DONE AND ORDERED in Chambers, at Miami, Florida, March 9, 2016.
Copies furnished to:
The Honorable Jose E. Martinez
All Counsel of Record
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?