Delgado v. GGNSC Grand Island Lakeview LLC

Filing 89

MEMORANDUM AND ORDER that Plaintiff's Motion for Leave to File Sur-reply Evidence in Opposition to Defendant's Motion for Disqualification, (Filing No. 75 ), is granted and Plaintiff's sur-reply, along with Defendant's response to that sur-reply were considered by the court. Defendant's motion to disqualify, (Filing No. 57 ), is denied. A telephonic conference with the undersigned magistrate judge will be held on May 2, 2017 at 10:00 a.m. to discuss the trial and pretrial conference scheduling. Counsel shall use the conferencing instructions assigned to this case, (see Filing No. 10 ), to participate in the call. Ordered by Magistrate Judge Cheryl R. Zwart. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TARA DELGADO,
Plaintiff,

4:15CV3124

vs.
MEMORANDUM AND ORDER
GGNSC GRAND ISLAND LAKEVIEW
LLC,
Defendant.
Defendant has filed a motion to disqualify Plaintiff’s counsel. (Filing No.
57). For the reasons discussed below, the motion will be denied.

STATEMENT OF FACTS

Plaintiff Tara Delgado and Lacie McGee both worked for Defendant at its
Lakeview facility. Both filed federal complaints against Defendant,1 alleging a
former employee of Defendant, Roy Miller, subjected them to a hostile work
environment and sexual harassment, and that Defendant retaliated against them
for reporting Miller’s offensive conduct.

Both were initially represented by

Kathleen Neary.

On July 20, 2016, Neary moved to withdraw as counsel for McGee,
explaining:
Ms. McGee was a supervisor for the Defendant during the relevant
time period in which Ms. Delgado alleges that she was discriminated
and retaliated against. Due to Ms. McGee’s status as a supervisor
1

Lacie McGee was the plaintiff in McGee v. GGNSC Grand Island Lakeview
LLC, et al, 8:16-cv-00107-JFB-SMB. That case was dismissed on February 23, 2017.
See 8:16-cv-00107, filing 34.

and the obligations she had under Defendant’s policies as well as
prevailing case law, there is a great likelihood that the movants
would be required to elicit testimony from Ms. McGee in Delgado v.
GGNSC that would be adverse to her.
See 8:16-cv-00107, filing 16. The motion to withdraw was granted, and McGee
obtained new counsel. Neary continued to represent Delgado.

Defendant argues that Neary must withdraw from both cases. Defendant
argues that if McGee was a supervisor whose statements, actions and inactions
can bind the company in Delgado’s lawsuit, Neary was, in essence, representing
both Plaintiff and Defendant in this case and through that representation, gained
access to Defendant’s confidential information. (Filing No. 58, at CM/ECF p. 78). Neary argues that her language in the motion to withdraw was included out of
an abundance of caution; that upon reflection, it is clear that McGee was not a
supervisor or manager who could bind the company but rather a mere coemployee of Delgado. As such, Neary claims she is not disqualified from
continuing to represent Delgado. (Filing No. 64).

ANALYSIS
“A party’s right to select its own counsel is an important public right and a
vital freedom that should be preserved; the extreme measure of disqualifying a
party’s counsel of choice should be imposed only when absolutely necessary.”
Macheca Transport Co. v. Philadelphia Indemnity Insurance, Co., 463 F.3d 827,
833 (8th Cir. 2006). “Because of the potential for abuse by opposing counsel,
disqualification motions should be subjected to particularly strict judicial scrutiny.”
Harker v. Comm’r, 82 F.3d 806, 808 (8th Cir. 1996)(internal quotations omitted).

2

“The decision to grant or deny a motion to disqualify an attorney rests in
the discretion of the [district] court.” Petrovic v. Amoco Oil Co., 200 F.3d 1140,
1154 (8th Cir. 1999)(internal quotations omitted). When considering whether an
attorney should be disqualified from representing a party, the court may consider
the ABA Code or Rules of professional conduct, any rules of professional
conduct adopted by the district court,2 the court’s duty to maintain public
confidence, and the court’s duty to insure the integrity of judicial proceedings.
See United States v. Agosto, 675 F.2d 965, 969 (8th Cir. 1982). “In cases where
counsel is in violation of professional ethics, the court may act on motion of an
aggrieved party . . . to disqualify.” O’Conner v. Jones, 946 F.2d 1395, 1399 (8th
Cir. 1991).

But the Eighth Circuit has not adopted a bright line rule which

requires disqualification in all cases where an ethics violation has occurred or will
occur unless the attorney in question is disqualified. See Ark. v. Dean Foods
Prods. Co., 605 F.2d 380, 383 (8th Cir. 1979)(overruled on other grounds, In re
Multi-Piece Rim Prod. Liab. Litig., 612 F.2d 377 (8th Cir. 1980)). The moving
party bears the burden on a motion to disqualify an attorney. Turner v. AIG
Domestic Claims, Inc., 823 F. Supp. 2d 899, 905 (D. Neb. 2011).
Plaintiff’s motion to withdraw—specifically her explicit statement that “Ms.
McGee was a supervisor” whose obligations under company policies could
subject her to adversarial examination by her own counsel—was not artfully
written. But Plaintiff’s counsel does not have the authority to decide whether
McGee’s knowledge, actions or inactions are binding on Defendant such that
representing McGee equates with representing the Defendant itself. That is a
2

This court prohibits attorneys from participating in “conduct unbecoming of a
member of the bar.” NEGenR 1.7(b)(2). The court has not adopted any specific ethical
standards, but “in addition to any other material, the court may consult other codes of
professional responsibility or ethics to determine whether a lawyer has engaged in
conduct unbecoming a member of the bar.” NEGenR 1.7(b)(2)(A).

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decision for the court, and as to that decision and whether it creates a conflict of
interest, counsel’s erroneous determination is irrelevant.

Upon a thorough review of not only the evidence submitted on this motion
to disqualify, but also Plaintiff’s briefing on the motion for summary judgment, it is
clear that McGee was never Delgado’s supervisor. Plaintiff’s summary judgment
briefing did not argue that McGee’s knowledge of Miller’s conduct must be
imputed to the company. The court is further convinced that if McGee was a
supervisor at all—a fact Defendant specifically denies—she was not at a
supervisory level such that her knowledge of any alleged harassment by Miller is
deemed knowledge by the company as a whole.

McGee was an hourly

employee who was hired as a Certified Medication Aide and was a Central
Supply Specialist when she resigned. (Filing No. 75-1, at CM/ECF pp. 3-4).

Defendant has failed to prove disqualification is warranted.

Accordingly,

IT IS ORDERED:

1)

Plaintiff’s Motion for Leave to File Sur-reply Evidence in Opposition

to Defendant's Motion for Disqualification, (Filing No. 75), is granted and
Plaintiff’s sur-reply, along with Defendant’s response to that sur-reply were
considered by the court.

2)

Defendant’s motion to disqualify, (Filing No. 57), is denied.

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3)

A telephonic conference with the undersigned magistrate judge will

be held on May 2, 2017 at 10:00 a.m. to discuss the trial and pretrial conference
scheduling. Counsel shall use the conferencing instructions assigned to this
case, (see Filing No. 10), to participate in the call.

April 28, 2017.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the
District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the
services or products they provide on their Web sites. Likewise, the court has no agreements with any of
these third parties or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some
other site does not affect the opinion of the court.

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