Alan L. Frank Law Associates, P.C. v. OOO RM Invest et al

Filing 153

ORDER denying 132 Motion to Disqualify Counsel. Signed by Magistrate Judge John J. O'Sullivan on 12/16/2016. (mkr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-cv-22484-ALTONAGA/O'SULLIVAN
ALAN L. FRANK LAW,
Plaintiff,

v.
000 RM INVEST, VARWOOD HOLDINGS,
LTO., TCAHAI HAIRULLAEVICH
KATCAEV, SASHA SCHMDT, SERGEY
PIROZHNIKOV,
Defendants.
./

________________________

ORDER

THIS MATTER is before the Court on the Majority Owners of RM Invest's Motion
to Disqualify the Behar Law Firm (DE# 132, 11/1/16) filed by defendants Sasha
Schmdt and Sergey Pirozhnikov (collectively, "Participant Parties"). Defendants 000
RM Invest, Varwood Holdings, Ltd. and Tcahai Hairullaevich Katcaev (collectively,
"Settling Parties") filed a response in opposition on November 28, 2016. See Settling
Parties' Memorandum of Law in Opposition to Participant Parties' Motion to Disqualify
Behar Law Firm [D.E. 132] (DE# 140, 11/28/16). The Participant Parties filed their rely
on December 8, 2016. See Majority Owners of RM Invest's Reply in Support of Motion
to Disqualify the Behar Law Firm (DE# 149, 12/8/16). This matter is ripe for
adjudication.
ANALYSIS

The Participant Parties seek to disqualify the Behar Law Firm from representing
defendant 000 RM Invest (hereinafter "RM Invest") on the ground that a conflict of
interest exists between defendants RM Invest and Varwood/Katcaev. The Settling

Parties oppose the relief requested in the instant motion on the grounds that: (1) the
Participant Parties lack standing to bring the instant motion and (2) there is no conflict
of interest.
Motions involving the disqualification of counsel must be determined according to
the standards imposed by the Florida Rules of Professional Conduct. Shaw v. Cassel,
No. 11-23689-CIV, 2012 WL 315050, at *2 (S.D. Fla. Feb. 1, 2012) (citing Morse v.
Clark, 890 So. 2d 496, 497 (Fla. 5th DCA 2004)). Rule 4-1.7 of the Rules Regulating
the Florida Bar governs conflicts between attorneys and current clients. Schulte v.
Angus, 14 So. 2d 1279, 1280 (Fla. 3d DCA 2009).
The burden of proving the grounds for disqualification is on the party moving to
disqualify. Great Am. Ins. Co. v. Gen. Contractors & Constr. Mgmt.. Inc., No. 07-21489CIV, 2008 WL 1994857 * 1 (S.D. Fla. May 6, 2008) (citing In re Bellsouth Corp., 334
F.3d 941, 961 (11th Cir. 2003) (citations omitted)). Disqualification of counsel is an
extraordinary remedy, and such motions are generally viewed with skepticism because
they are often made for tactical purposes.

kL. (citing Yang Enters .. Inc. v. Georgalis, 988

So. 2d 1180, 1183 (Fla. 1st DCA 2008) (internal quotation marks, brackets and citations
omitted).
The Court finds that the Participant Parties have failed to establish standing to
bring the instant motion to disqualify. In support of standing, the Participant Parties cite
the Court's prior rulings. See Majority Owners of RM Invest's Reply in Support of Motion
to Disqualify the Behar Law Firm (DE # 149 at 4, 12/8/16). However, whether the
Participant Parties have standing to assert a cross-claim or participate as interveners in
another proceeding is not the same as whether the Participant Parties have standing to

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disqualify opposing counsel. 1 To have standing to seek the disqualification of the Behar
Law Firm, the Participant Parties must show that "the conflict of interest clearly calls into
question the fair or efficient administration of justice." Zarco v. Supply Co. v. Bonnell,
658 So.2d 151, 154 (Fla. 1st DCA 1995). The Participant Parties have not made that
showing here.
The Court further finds that the Participant Parties have not shown a conflict
between RM Invest and Varwood/Katcaev. The facts in this case are that on or about
January 29, 2016, RM Invest, Varwood and Katcaev entered into a Division Agreement
wherein they agreed to the distribution of the Settlement Proceeds in a certain manner.
To date, the Court has not invalidated the Division Agreement. If the Court reaches the
merits of this case, the validity or invalidity of the Division Agreement will likely be
determined at that time. However, at this juncture, an agreement exists between RM
Invest and Varwood/Katcaev as to the distribution of the Settlement Proceeds. 2 Thus,
the instant case is distinguishable from the cases cited by the Participant Parties.
Motions for the disqualification of counsel are not favored and the Participant
Parties have not met their burden of showing entitlement to the relief requested.

1

The undersigned notes that in the Report and Recommendation (DE# 147)
cited by the Participant Parties, the undersigned specifically found that the Participant
Parties had failed to address the requirements of standing in their opposition
memorandum and therefore failed to carry their burden of establishing standing. l.Q.,_ at
18.
2

The undersigned makes no ruling on the validity or invalidity of the Division
Agreement. The undersigned merely notes that at this point in the proceedings the
Division Agreement has not been invalidated.

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CONCLUSION
In accordance with the foregoing, it is
ORDERED AND ADJUDGED that the Majority Owners of RM Invest's Motion to
Disqualify the Behar Law Firm (DE# 132, 11/1/16) is DENIED. It is further
ORDERED AND ADJUDGED that the Settling Parties' request for attorney's fees
based on the Participant Parties failure to confer prior to filing the instant motion is
DENIED.
DONE AND ORDERED, in Chambers, at Mia i, Florida this

Jb

rJl

December, 2016.

JOHN J.
UNITED
Copies provided to:
United States District Judge Altonaga
All counsel of record

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day of