In Re: RFC and RESCAP Liquidating Trust Litigation

Filing 2368

ORDER denying plaintiff's #2247 Motion to Disqualify the Stinson Leonard Street Counsel. (Written Opinion) Signed by Chief Judge John R. Tunheim on March 27, 2017. (DML)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
In re: RFC AND RESCAP
LIQUIDATING TRUST LITIGATION

Civil No. 13-3451 (SRN/HB)

This Document Relates to:
Civil No. 17-194 (PAM/HB)
RESCAP LIQUIDATING TRUST,
Plaintiff,
v.
FIRST TENNESSEE BANK, N.A.,
Defendant,
and

ORDER DENYING PLAINTIFF’S
MOTION TO DISQUALIFY
COUNSEL

Civil No. 17-198 (SRN/HB)
RESCAP LIQUIDATING TRUST,
Plaintiff,
v.
WMC MORTGAGE, LLC, as Successor
to WMC Mortgage Corp. F/K/A
Weyerhaeuser Mortgage Company,
Defendant.

Jessica J. Nelson and Donald G. Heeman, FELHABER LARSON, 220
South Sixth Street, Suite 2200, Minneapolis, MN 55402, Peter Evan
Calamari, David Lawrence Elsberg, and Isaac Nesser, QUINN
EMANUEL URQUHART & SULLIVAN, LLP, 51 Madison Avenue,
22nd Floor, New York, NY 10010, Anthony Paul Alden and Johanna Yao
Ong, QUINN EMANUEL URQUHART & SULLIVAN, LLP, 865
South Figueroa Street, 10th Floor, Los Angeles, CA 90017, and Jeffrey
Alan Lipps and Jennifer A.L. Battle, CARPENTER LIPPS & LELAND
LLP, 280 Plaza, Suite 1300, 280 North High Street, Columbus, OH 43215,
for plaintiff.

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Sharon Robin Markowitz, STINSON LEONARD STREET LLP, 150
South 5th Street, Suite 2300, Minneapolis, MN 55402, for both defendants.
Todd A. Noteboom, W. Anders Folk, Timothy P. Griffin, William
Thomson, and Rachel Davis, STINSON LEONARD STREET LLP, 150
South 5th Street, Suite 2300, Minneapolis, MN 55402, and Amanda Flug
Davidoff and James Harris Congdon, SULLIVAN & CROMWELL LLP,
1700 New York Avenue N.W., Suite 700, Washington, DC 20006, for
First Tennessee Bank, N.A.

The individual matters before this court, ResCap Liquidating Trust v. First
Tennessee Bank, N.A. (“First Tennessee”) and ResCap Liquidating Trust v. WMC
Mortgage, LLC, (“WMC”), both filed January 23, 2017, are two of dozens of lawsuits
that Plaintiff ResCap Liquidating Trust (“ResCap”) has filed against mortgage loan
originators over the course of many years. (Compl., Jan. 23, 2017, Case No. 17-194,
Docket No. 1; Compl., Jan. 23, 2017, Case No. 17-198, Docket No. 1.) In January 2015,
well before the filing of these two individual matters, the Court consolidated for pretrial
purposes the related cases then pending before United States District Judge Susan
Richard Nelson.

(Administrative Order, Jan. 27, 2015, Case No. 13-3451, Docket

No. 100; see also Am. Administrative Order, Jan. 29, 2015, Case No. 13-3451, Docket
No. 102.) Thus, shortly after ResCap filed the complaints in First Tennessee and WMC,
the Court reassigned the matters to the consolidated proceeding before Judge Nelson.
(Clerk’s Notice of Initial Case Assignment, Case No. 17-198, Jan. 23, 2017, Docket
No. 2; Am. Administrative Order, Jan. 25, 2017, Case No. 17-194, Docket No. 5;
Administrative Order, Jan. 24, 2017, Case No. 17-198, Docket No. 5.)

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On February 10, 2017, attorneys from the law firm Stinson Leonard Street
(“Stinson”) filed a notice of appearance in First Tennessee. (See Notice of Appearance,
Feb. 10, 2017, Case No. 17-194, Docket No. 7.)

Shortly thereafter, Judge Nelson

sua sponte recused, pursuant to 28 U.S.C. § 455, because her spouse is a member of the
Stinson firm. (Order of Recusal & Reassignment, Feb. 13, 2017, Case No. 17-194,
Docket No. 10.) An attorney from Stinson first appeared in WMC on February 21, 2017.
(See Letter to Magistrate Judge, Feb. 21, 2017, Case No. 17-198, Docket No. 7.) Relying
on a prior order (the “December Order”) disqualifying Stinson when a different defendant
in the consolidated action – Impac Funding Corporation (“Impac”) – retained Stinson
mid-stream in ongoing litigation, (see Mem. Op. & Order (“December Order”), Dec. 8,
2016, Case No. 13-3451, Docket No. 2023), ResCap now requests that the Court prohibit
Stinson from representing Defendants First Tennessee Bank, N.A. (“First Tennessee”)
and WMC Mortgage, LLC (“WMC”).
As the Court noted in the December Order, (see id. at 12), the Eighth Circuit
reviews orders disqualifying counsel carefully because “the potential for abuse by
opposing counsel is high.”

Droste v. Julien, 477 F.3d 1030, 1035 (8th Cir. 2007).

Disqualifying a party’s counsel of choice is an “extreme measure” that “should be
imposed only when absolutely necessary.” Macheca Transp. Co. v. Phila. Indemn. Ins.
Co., 463 F.3d 827, 833 (8th Cir. 2006) (citations omitted).

The party seeking

disqualification bears the burden of showing that this outcome is warranted, see A.J. by
L.B. v. Kierst, 56 F.3d 849, 859 (8th Cir. 1995), but if there are genuinely “legitimate

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doubts,” they “must be resolved in favor of disqualification,” Olson v. Snap Prods., Inc.,
183 F.R.D. 539, 542 (D. Minn. 1998).
Reviewing the motion at hand, the Court finds the situation in First Tennessee and
WMC distinguishable from the circumstances giving rise to the December Order. Most
importantly, First Tennessee and WMC retained Stinson attorneys less than a month after
service of process; in contrast, Impac retained Stinson attorneys almost two years after
Judge Nelson took the reins in that case. (See December Order at 15.) While there is the
danger that some inefficiency will result from separate proceedings, (see id.), Judge
Nelson has invested very little time in First Tennessee or WMC (cf. id. at 15-16
(explaining that Stinson should be disqualified in part because Judge Nelson had already
“overseen numerous pre-trial disputes” in the Impac litigation and there were “discovery
disputes that have not yet become the subject of a formal motion and that [would] likely
relate back to earlier decisions Judge Nelson has made in the case”).) And while the
potential for judge-shopping will always be present when a judge is related to a local
attorney, the Court finds First Tennessee’s and WMC’s retention of Stinson from the
outset does not raise the same red flags as Impac’s mid-litigation retention of Stinson.
(See id. at 14-15.)

Balancing all the relevant circumstances, the Court finds that

disqualification of Stinson attorneys is not warranted.

ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Plaintiff ResCap Liquidating Trust’s Motion to Disqualify

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Counsel [Case No. 13-3451, Docket No. 2247] in the individual matters of ResCap
Liquidating Trust v. First Tennessee Bank, N.A., Case No. 17-194, and ResCap
Liquidating Trust v. WMC Mortgage, LLC, Case No. 17-198, is DENIED.

DATED: March 27, 2017
at Minneapolis, Minnesota.

____s/
____
JOHN R. TUNHEIM
Chief Judge
United States District Court

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