Cross v. MHM Correctional Services, Inc. et al

Filing 37

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiff Christopher Cross's Motions to Recuse Kevin Adrian as Legal Counsel and to Strike All Pleadings Filed by Kevin Adrian from the Record (Doc. # 17); and to Quash Defendants' Repl y to Plaintiff's Motion to Have Kevin Adrian Recused and to Strike All Pleadings Filed by Kevin Adrian (Doc. #27) are denied without prejudice. Denying 17 Pro Se Motion; Denying 27 Motion to Quash. Signed by Magistrate Judge Frederick R. Buckles on 9/17/2012. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHRISTOPHER CROSS, Legal Guardian, )
)
Plaintiff,
)
)
v.
)
)
MHM CORRECTIONAL SERVICES, INC.,
)
et al.,
)
)
Defendants.
)

No.

4:11CV1544 FRB

MEMORANDUM AND ORDER
Presently

pending

before

the

Court

are

plaintiff

Christopher Cross’s Motions to Recuse Kevin Adrian as Legal Counsel
and to Strike All Pleadings Filed by Kevin Adrian from the Record
(Doc. # 17); and to Quash Defendants’ Reply to Plaintiff’s Motion
to Have Kevin Adrian Recused and to Strike All Pleadings Filed by
Kevin Adrian (Doc. #27).

All matters are pending before the

undersigned United States Magistrate Judge, with consent of the
parties, pursuant to 28 U.S.C. § 636(c).
Plaintiff Christopher Cross brings this cause of action,
pro se, alleging that, as the legal guardian of Missouri state
prisoner Eldon Eugene Flaherty, he has been deprived of his legal
rights and responsibilities in relation to his guardianship of Mr.
Flaherty through defendants’ unlawful and unconstitutional conduct
which has resulted in plaintiff’s inability to act in the best
interest of Mr. Flaherty as legally required.

In the instant

motions

requests

to

recuse

and

to

strike,

plaintiff

that

defendants’ counsel of record in this cause, Kevin Adrian, not be
allowed to proceed as counsel given his direct involvement in some
of the conduct alleged by plaintiff in the First Amended Complaint,
as well as on account of his firsthand knowledge of many of the
circumstances giving rise to the claims raised in the First Amended
Complaint.

In light of such, plaintiff contends that Mr. Adrian

should not be permitted to proceed as defendants’ counsel inasmuch
as he will be a necessary and material witness to the action.
Plaintiff further contends that defendants’ Answer and Motion to
Dismiss, filed in this cause by Mr. Adrian, contains statements and
averments that Mr. Adrian knows personally to be untrue given his
direct

involvement,

and

thus

that

Mr.

Adrian

has

committed

violations of Fed. R. Civ. P. 8(b) and 11 through such filings.
Defendants, through counsel Kevin Adrian, have responded to the
motions.
Rule

4-3.7

of

the

Missouri

Supreme

Court

Rules

of

Professional Conduct prohibits a lawyer from acting as an advocate
at trial in which the lawyer is likely to be a necessary witness.1
One purpose of the necessary witness rule is to avoid the possible
confusion which might result from the jury observing a lawyer act
in dual capacities — as witness and advocate.
477 F.3d 1030, 1035-36 (8th Cir. 2007).

1

Droste v. Julien,

The rule does not normally

The Rules of Professional Conduct adopted by this Court are
the Rules of Professional Conduct adopted by the Supreme Court of
Missouri. E.D. Mo. L.R. 12.02.
-2-

apply

to

disqualify

an

activities. Id. at 1036.

attorney

from

performing

pretrial

Nothing presently before the Court shows

that Mr. Adrian’s pretrial activity may reveal his dual role as
lawyer and witness at trial and, as such, the motion should be
denied. The motion should be denied without prejudice, however, to
be refiled in the course of these proceedings if Mr. Adrian’s
perceived

dual

role

may

be

revealed

in

evidence

potentially

admissible at trial. Id.; see also Williams v. Borden Chem., Inc.,
501 F. Supp. 2d 1219, 1223 n.5 (S.D. Iowa 2007) (counseling against
such an attorney either conducting or appearing at depositions,
“there is a risk that the offer of the deposition at trial would
reveal [the attorney’s] dual role to the fact-finder[.]”).
To the extent plaintiff argues that Mr. Adrian’s filings
violate Rules 8(b) and 11, Federal Rules of Civil Procedure, in
that

they

contain

known

false

statements

given

Mr.

Adrian’s

personal knowledge of the facts otherwise, plaintiff’s request to
disqualify Mr. Adrian on such a basis will likewise be denied
without prejudice.

To dispositively determine at this time the

extent to which defendants’ denials and/or admissions made in their
responsive pleadings to plaintiff’s First Amended Complaint are, in
fact, correct and/or consistent with counsel Kevin Adrian’s alleged
personal knowledge of the factual averments made in the complaint
would result in a mini-trial on the central issues of this cause,
based solely on the pleadings presently before the Court without

-3-

the opportunity for discovery.

This the Court declines to do.

See

Consolidated Doors, Inc. v. Mid-America Door Co., 120 F. Supp. 2d
759, 768 (E.D. Wis. 2000) (evidentiary record not being welldeveloped, court would have to conduct mini-trial in order to
decide Rule 11 issue).

Cf. Borowski v. DePuy, Inc., a Div. of

Boehringer Mannheim Co., 876 F.2d 1339, 1343 (7th Cir. 1989)
(Cudahy, J., concurring in part, dissenting in part) (district
court did not abuse its discretion by refusing to allow Rule 11
proceedings to be conducted as mini-trial); Muset v. Ishimaru, 783
F. Supp. 2d 360, 373 (E.D.N.Y. 2011) (Rule 11 does not require
attorneys

to

conduct

mini-trials

before

setting

forth

their

conclusions).
Accordingly,
IT IS HEREBY ORDERED that plaintiff Christopher Cross’s
Motions to Recuse Kevin Adrian as Legal Counsel

and to Strike All

Pleadings Filed by Kevin Adrian from the Record (Doc. # 17); and to
Quash Defendants’ Reply to Plaintiff’s Motion to Have Kevin Adrian
Recused and to Strike All Pleadings Filed by Kevin Adrian (Doc.
#27) are denied without prejudice.

UNITED STATES MAGISTRATE JUDGE

Dated this

17th

day of September, 2012.
-4-