Wells Fargo Bank, National Association v. Bettenhausen

Filing 23

MEMORANDUM AND ORDER denying 12 Motion to Disqualify; denying 13 and 16 , Motions for Default Judgment on defendant's counterclaim. Ordered by Magistrate Judge Cheryl R. Zwart. (CRZ)

- C R Z Wells Fargo Bank, National Association v. Bettenhausen

D o c . 23

IN THE UNITED STATES DISTRICT COURT FO R THE DISTRICT OF NEBRASKA W ELLS FARGO BANK, NATIONAL ASSOCIATION, JERALD LUNDG REN, STEVEN A BLOCHER, and TREV E PETERSON, P l ai nt i f f s , v. CLARK E. BETTENHAUSEN, Defendant. ) ) ) ) ) ) ) ) ) ) ) )

4 : 1 0 CV3 1 2 0

M EM ORANDUM AND ORDER

The defendant, Clark Bettenhausen ("Bettenhausen") has moved to disqualify Trev P e t e r s o n as counsel for plaintiff Wells Fargo Bank, (filing no. 12), and for a default judgment agai ns t plaintiffs Wells Fargo, Jerald Lundgren, and Steven A. Blocher, ( f i l i ng nos. 13 and 1 6 ).

Bettenhausen's motions for default judgment state Wells Fargo, Jerald Lundgren, and St e ve n A. Blocher were properly served but failed to answer defendant's counterclaim. The c o ur t 's record directly contradicts Bettenhausen's assertions. Specifically, the plaintiffs filed and served their answer to Bettenhausen's counterclaim on August 13, 2010. Filing No. 8. Ac c o r di ngl y, the motions for default judgment lack merit and will be denied.

Be t t e nhaus e n's motion to disqualify Trev Peterson as counsel states Peterson will be c al l e d to testify at trial and has a conflict of interest in representing We l l s Fargo. Be t t e nhaus e n has not, however, submitted any evidence or argument in support of his m o t i o n. He has failed to identify the topics or content of Peterson's anticipated testimony, ho w that testimony may affect Wells Fargo, or the potential risk of confusion to the court if

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P e t e r s o n testifies at trial. A mere blanket allegation that Peterson may be a trial witness is no t a sufficient basis to disqualify him as counsel for Wells Far g o . See, e.g., Macheca Tr a n s p o r t Co. v. Philadelphia Indem. Co., 463 F.3d 827, 833 (8th Cir. 2006). Moreover, e ve n assuming Peterson may be a necessary trial witness on a disputed material fact, the de f e ndant 's motion is overbroad and premature. A lawyer who is like l y to be a necessary wi t ne s s at trial may still represent a client in the pretrial stages of the case. Droste v. Julien, 4 7 7 F.3d 1030, 1035 (8th Cir. 2007).

Ac c o r di ngl y, 1) De f e ndant Bettenhausen's motions for def a u l t judgment, (filing nos. 13 and 1 6 ) , are denied; and De f e ndant Bettenhausen's motion to disqualify Trev Peterson as counsel for pl ai nt i f f Wells Fargo Bank, (filing no. 12), is denied.

2)

DATED this 7 th day of October, 2010. BY THE COURT: s / Cheryl R. Zwart United States Magistrate Judge

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