Alexander v. Hood et al

Filing 34

ORDER denying 31 Motion under Rule 60(b) and Rule 103 of the Federal Rules of Civil Procedure. Signed by Magistrate Judge Jane M. Virden on 12/12/2016. (bbf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
EFFORT ALEXANDER
VS.

PLAINTIFF
CIVIL ACTION NO.: 3:16-cv-202-GHD-JMV

JIM HOOD, ATTORNEY GENERAL
FOR STATE OF MISSISSIPPI AND DESOTO COUNTY
SOIL AND WATER CONSERVATION DISTRICT

DEFENDANTS

ORDER DENYING MOTION UNDER RULE 60(b) AND RULE 103 OF THE
FEDERAL RULES OF CIVIL PROCEDURE
This matter is before the court on the pro se Plaintiff, Effort Alexander’s, Motion Under
Rule 60(b) and Rule 103 of the Federal Rules of Civil Procedure [31] regarding the court’s order
denying Plaintiff’s motion to disqualify counsel that was entered on December 1, 2016 [24]. For
the reasons explained below, the motion will be denied.
Motions to disqualify opposing counsel are generally “viewed with extreme caution for
they can be misused as techniques of harassment.” Freeman v. Chicago Musical Instrument Co.,
689 F.2d 715, 722 (7th Cir. 1982); In re Multi-Piece Rim Products Liability Litigation, 612 F.2d
377, 378 (8th Cir. 1980), overruled on other grounds by Firestone Tire & Rubber Co. v. Risjord,
449 U.S. 368 (1981). Because of the potential for abuse, disqualification motions are “generally
disfavored” and subjected to “particularly strict judicial scrutiny.” Optyl Eyewear Fashion Int’l
Corp. v. Style Cos., 760 F.2d 1045, 1050 (9th Cir. 1985); Kent v. Scamardella, 2007 WL
2012418, at*2 (S.D.N.Y. July 11, 2007); see also Federal Dep. Ins. Corp. v. United States Fire
Ins. Co., 50 F.3d 1304, 1316 (5th Cir. 1995) (“A disqualification inquiry, particularly when
instigated by an opponent, presents a palpable risk of unfairly denying a party the counsel of his
choosing.”); Kennedy v. Mind Print (In reProEducation Int'l, Inc.), 587 F.3d 296, 300 (5th Cir.
2009).

In support of his motion, Plaintiff alleges Mr. Lee Thames, counsel for the Defendants,
has committed a fraud on the court and may be a witness in the case.1
Fraud on the Court
Though Plaintiff alleges that Mr. Thames has committed a fraud on the court, he wholly
fails to state any facts concerning same, such a date(s) of occurrence and a description of specific
complained of conduct – not simply conclusory allegations of fraud. Indeed, it appears that
Plaintiff’s complaint about Mr. Thames arises from the fact that in prior unsuccessful lawsuits
brought by the Plaintiff, Mr. Thames was counsel for the successful party. This falls woefully
short of grounds for disqualification.
A Necessary Witness
With respect to the allegation that Mr. Thames may be a necessary witness in the case,
again the motion will be denied for lack of any facts alleged to support the conclusory assertion
that Mr. Thames is a necessary witness in this case, including facts such as what claims Mr.
Thames would offer relevant testimony on, etc.
Conclusion
For the reasons explained above, the motion will be DENIED. Plaintiff may re-urge his
motion provided he offers specific facts to support his allegations.
SO ORDERED this, the 12th day of December, 2016.
/s/ Jane M. Virden
UNITED STATES MAGISTRATE JUDGE

1

Plaintiff also alleges that the Defendants’ response [21] was untimely and that the court failed to allow
Plaintiff an opportunity to reply before ruling. Given that the court is reconsidering Plaintiff’s motion to disqualify,
that procedural flaw has been cured.