Miskel v. Beelman River Terminals, Inc. et al

Filing 112

ORDER MOOTING 72 MOTION for Extension of Time to File Response/Reply as to 70 SEALED MOTION to Disqualify Plaintiff's Counsel filed by Anthony R. Miskel, DENYING 79 MOTION to Compel filed by Anthony R. Mi skel, GRANTING 96 MOTION for Leave to File a Supplemental Brief Regarding Its Motion to Disqualify Plaintiff's Counsel filed by SCF Lewis and Clark Fleeting LLC,. Set/Reset Deadlines as to 70 SEALED MOTION to Disqualify Plaintiff's Counsel.( Responses due by 6/13/2016). Signed by Magistrate Judge Donald G. Wilkerson on 5/23/16. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
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Plaintiff,
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v.
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SCF LEWIS & CLARK MARINE, INC., SCF)
LEWIS AND CLARK FLEETING LLC, and)
)
M/V KATIE MAURINE,
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)
Defendants.
ANTHONY R. MISKEL,

Case No. 3:14-cv-338-SMY-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court are the Motion for Extension of Time filed by Plaintiff,
Anthony R. Miskel, on February 8, 2016 (Doc. 72), the Motion to Compel filed by Plaintiff on
February 19, 2016 (Doc. 79), and the Motion to Supplement filed by Defendants on April 19, 2016
(Doc. 96). The Motion for Extension of Time is MOOT, the Motion to Compel is DENIED and
the Motion to Supplement is GRANTED.
Defendants seek to exclude Plaintiff’s attorneys from representing him in this matter due to
a conflict of interest. Defendants represent that a former attorney of record, Courtney C. Stirrat,
who is employed by the firm representing Plaintiff, Armbruster, Dripps, Winterscheidt, &
Blotevogel, LLC, was a former attorney of Lewis & Clark Marine, Inc (“L & C”). From 2009 to
2012, Ms. Stirrat represented L & C when she was employed by the firm Tonkin & Mondle, L.C.
and represented L & C in five suits similar to the one at bar, namely Jones Act Cases, and, on at
least one occasion, for events on the same ship, the M/V Katie Maurine. On December 30, 2011
Defendant SCF Lewis & Clark (“SCF”) purchased L & C’s assets and continued to operate its
harbor and fleeting services in substantially the same location and manner. Thus, SCF claims that
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any attorney-client privilege that was held by L & C vis-à-vis Ms. Stirrat is imputed to it and can be
enforced by it. SCF seeks not only the withdrawal of Ms. Stirrat (she withdrew on January 26,
2016) but also of the Armbruster law firm.
In response, Plaintiff seeks to conduct discovery on two matters. In order to show that
Defendants timed its motion to disqualify in order to gain a tactical advantage, Plaintiff seeks
Defendants’ counsels’ billing records and communications between them and Tonkin & Mondl,
P.C. And, in order to show that Defendants waived any conflict, Plaintiff seeks documentation in
an unrelated matter in which Ms. Stirrat represented U.S. Fire Insurance Company adversely to
Defendant in 2013. The remainder of Plaintiff’s brief appears to be a response to the motion to
disqualify itself.
Discovery of communications between Defendant’s attorneys and third parties to this
litigation are not a valuable use of resources and would create tangential litigation on matters that
are wholly unrelated to actual claims and defenses in this matter. The only question before the
Court is whether Plaintiff’s attorneys violated ethical rules when they elected to represent Plaintiff
in a matter adverse to Defendant. A secondary question is whether all of the attorneys from the
firm Armbruster, Dripps, et al., should be excluded from this suit. That Defendant’s attorneys
may have been gaming the system to achieve a tactical advantage is unfortunate but not relevant to
those questions. The privilege lies with the client, SCF Lewis & Clark Marine, Inc., and
exploration of any tangential motivations of counsel is unnecessary. Such a process would delay
these matters, unnecessarily multiply the cost of this litigation, and otherwise be a waste of
resources. If Plaintiff believes that Defendant has waived the privilege, he may certainly argue as
much in his brief in response. To that end, Plaintiff shall file a response to the Motion to
Disqualify (Doc. 70), and any supplement, by June 13, 2016.

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Defendant is GRANTED leave to submit a supplemental brief as outlined in its Motion
(Doc. 96). Such a brief shall be limited to 5 pages and shall be filed no later than May 31, 2016.
In light of these conclusions, Plaintiff’s Motion for Extension of Time is MOOT (Doc. 72).
IT IS SO ORDERED.
DATED: May 23, 2016

DONALD G. WILKERSON
United States Magistrate Judge

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