Sadid v. Idaho State University et al

Filing 210

MEMORANDUM DECISION AND ORDER. Plaintiff's Motion to Disqualify Counsel and Stay Proceedings 201 is DENIED. Defendant's request for sanctions is DENIED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
HABIB SADID, an individual,
v.

Case No. 4:11-cv-00103-BLW

Plaintiff,

IDAHO STATE UNIVERSITY,
ARTHUR VAILAS, RICHARD
JACOBSEN, GRAHAM GARNER,
DAVID BEARD, and JOHN/JANE
DOES 1 through X, whose true identities
are presently unknown,

MEMORANDUM DECISION AND
ORDER

Defendants.
INTRODUCTION
Pending before the Court is plaintiff Dr. Habib Sadid’s Motion to Disqualify
Counsel and Stay Proceedings. See Dkt. 201. The Court has determined oral argument
would not significantly assist the decisional process and will decide the motion without a
hearing. For the reasons expressed below, the Court will deny the motion.
BACKGROUND
The only remaining defendant in this case is Graham Garner. Plaintiff argues that
defense counsel cannot properly represent Mr. Garner due to an alleged conflict of
interest with all former defendants in this case as well as the defendants in Dr. Sadid’s
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identical state-court action. See Mot. Mem., Dkt. 201-2, at 7; see Sadid v. Idaho State
Univ., et al., Case No. CV-2011-3455-OC (Bannock Cty., filed Aug. 23, 2011).
ANALYSIS
Motions to disqualify counsel are decided under state law and are committed to
the discretion of the trial court. In re Cnty. of L.A., 223 F.3d 990, 995 (9th Cir. 2000);
Crown v. Hawkins Co., 910 P.2d 786, 794 (Idaho Ct. App. 1996). Under Idaho law,
“[t]he moving party has the burden of establishing grounds for the disqualification.’”
Crown, 910 P.2d at 794. Because motions to disqualify opposing counsel are potentially
misused for tactical purposes, they are subjected to “‘particularly strict judicial
scrutiny.’” Optyl Eyewear Fashion Int’l Corp. v. Style Co., 760 F.2d 1045, 1050 (9th Cir.
1985) (citation omitted). Additionally, parties who seek to disqualify opposing counsel
should do so “at the onset of the litigation, or ‘with promptness and reasonable diligence’
once the facts upon which the motion is based have become known. A failure to act
promptly may warrant denial of the motion.” Crown, 910 P.2d at 795 (internal citations
omitted).
Plaintiff did not act promptly in this case. His disqualification motion is based on
President Vailas’ deposition testimony, which was given some 18 months ago in May
2012. During his deposition, Vailas said Garner was not speaking for Vailas or ISU
when Garner commented on Dr. Sadid’s termination. That deposition testimony allowed
Dr. Sadid to survive summary judgment on his defamation claim. The Court highlighted
the testimony in its May 2013 decision:

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Two competing inferences can be drawn from . . . [Vailas’] testimony.
The first inference, most favorable to Dr. Sadid, is that Vailas meant
Garner was not acting in the course and scope of his employment. The
second inference, more favorable to Garner, is that President Vailas was
not commenting in any detail on Garner’s job description, but was
instead stating that he did not think Garner’s statements accurately
reflected his or the university’s view. The defendants effectively ask the
Court to adopt this second inference, but the Court cannot do so in
ruling on a motion for summary judgment – especially when President
Vailas has not submitted any affidavit further explaining what he meant.
As it stands, President Vailas’ unvarnished deposition testimony is
sufficient to overcome the presumption that Garner was acting in the
course and scope of his employment. The jury will therefore need to
decide this question.
May 2, 2013 Decision, Dkt. 135, at 19.
Dr. Sadid has not adequately explained why he waited so long to pursue a
disqualification motion based on President Vailas’ deposition testimony. This very
lengthy delay – combined with the fact that plaintiff dropped this motion on defense
counsel (and the Court) just two weeks before trial – militates against disqualification.
More substantively, the Court finds that Dr. Sadid has failed to demonstrate a
conflict of interest. Idaho Rule of Professional Conduct 1.7, which addresses conflicts of
interest, provides as follows:
(a)

Except as provided in paragraph (b) below, a lawyer shall not
represent a client if the representation involves a concurrent
conflict of interest. A concurrent conflict of interest exists if:
(1)

the representation of one client will be directly adverse to
another client; or

(2)

there is a significant risk that the representation of one or
more clients will be materially limited by the lawyer’s
responsibilities to another client, a former client or a third
person or by the personal interests of the lawyer, including
family and domestic relationships.

MEMORANDUM DECISION AND ORDER - 3

For there to be an actual conflict here, ISU would theoretically be attempting to
avoid its potential indemnification obligations to Mr. Garner by distancing itself from
him – specifically, under these facts, by asserting that Garner’s actions were outside the
scope of his employment. Defense counsel has never taken that position; to the contrary,
they have vigorously and consistently argued that Mr. Garner acted in the course and
scope of his employment. The fact that Vailas gave some ambiguous deposition
testimony on this point gave Dr. Sadid an opening to argue that Garner is not immune
from suit. See Idaho Code § 6-904(3) (government employees “while acting within the
course and scope of their employment and without malice or criminal intent shall not be
liable for any claim which . . . [a]rises out of . . . libel . . . .’”). But this testimony has not
caused a conflict to arise among the defendants. As noted, defense counsel has never
shown any inclination to argue that Garner was acting outside the course and scope of
his employment. As a result, ISU’s and Garner’s interests are aligned and there is no
conflict.
Other courts have rejected similar motions to disqualify. For example, in
Granberry v. Byrne, 2011 WL 4852463, at *5 (E.D. Pa. 2011), the court explained that
“at this juncture, the legal positions of both Defendants are completely aligned and any
possibility of inconsistent defenses coming into play is, at best, hypothetical.” See also,
e.g., Lieberman v. City of Rochester, 681 F. Supp. 2d 418, 427 (W.D.N.Y. 2010) (“at this
stage in the litigation, the City has not distanced itself from the Officers in the defense of

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this action, but rather has affirmed that the Officers were acting within the scope of their
employment.”).
For these reasons, the Court does not believe the integrity of the adversary process
is threatened by defense counsel’s continued representation of Mr. Garner. The Court
will therefore deny Dr. Sadid’s motion to disqualify defense counsel and stay these
proceedings. The Court will not issue sanctions at this time, but plaintiff should exercise
prudence. If the Court determines, during the trial or post-trial proceedings, that he has
filed a meritless motion for improper tactical purposes, the Court will not hesitate to issue
sanctions.
ORDER
Plaintiff’s Motion to Disqualify Counsel and Stay Proceedings (Dkt. 201) is
DENIED. Defendant’s request for sanctions is DENIED.
DATED: December 6, 2013
_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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