Sundquist v. State of Nebraska et al

Filing 52

MEMORANDUM AND ORDER - Defendants' objection, (Filing No. 40 ) is sustained. Plaintiff's motion to disqualify, (Filing No. 39 ), is denied. Defendants' motion to stay, (Filing No. 45 ), is granted. Ordered by Magistrate Judge Cheryl R. Zwart. (Copy e-mailed to pro se party)(GJG) Modified on 10/16/2015 to show copy e-mailed instead of mailed to pro se party (GJG).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARVIN DOUGLAS SUNDQUIST,
Plaintiff,

8:14CV220

vs.
MEMORANDUM AND ORDER
STATE OF NEBRASKA, et.al;
Defendants.
Pending before me are the plaintiff’s motion to disqualify, (Filing No. 39), and the
defendants’ motion to stay, (Filing No. 45). For the reasons stated below, the motion to
disqualify will be denied, and the motion to stay will be granted.

Motion to Disqualify
(Filing No. 39)
Citing a conflict of interest, the plaintiff has moved to disqualify the Nebraska
Attorney General’s Office from representing Defendants Ed Vierk and Ruth Schuldt in
their individual capacities. (Filing No. 39). The Attorney General’s Office objects,
explaining that under Nebraska statutory law, the Attorney General’s Office is authorized
to appear for Nebraska and defend the state in all matters in any forum, and to represent
state officers and employees in civil actions arising from their alleged acts or omissions
performed in the course and scope of their employment. Neb. Rev. Stat. § 84-203; Neb.
Rev. Stat. § 81-8,239.06. The Attorney General also claims that by waiting over a year to
file a motion to disqualify, Plaintiff waived his objection to the Attorney General’s
participation in this case. (Filing No. 40).

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). “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). “When it comes to disqualifying counsel at the
pretrial stage, the Court of Appeals takes a very dim view of such a ruling.” Turner, 823
F. Supp. 2d at 905 (citing Droste v. Julien, 477 F.3d 1030, 1035 (8th Cir. 2007)).

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, 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). Attorneys in this forum
“must refrain from conduct unbecoming of a member of the bar.” NEGenR 1.7(b).
While the Nebraska federal court has not adopted specific rules, it does consider case law
and rules of professional responsibility when deciding whether a lawyer has engaged in
conduct unbecoming a member of the bar. NEGenR 1.7(b). “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). 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).

The plaintiff claims the Nebraska Attorney General is obligated to protect the
Constitutional rights of the Plaintiff as a citizen of the State of Nebraska, and by asserting
immunity defenses, it is “allow[ing] employees of the State of Nebraska to violate the
Constitutional rights of the citizens of Nebraska, without regard to the consequences or
damages of such actions.” For civil cases, the Attorney General represents the State and
its agencies, along with the State’s employees acting within the scope of their
employment. It does not represent Sundquist in this lawsuit. As such, there is no merit to
Plaintiff’s claim that the Attorney General cannot raise immunity defenses on behalf of
2

the defendants because it is statutorily obligated to advocate for and protect Plaintiff
interests.

Plaintiff argues the Nebraska Attorney General may raise immunity defenses, and
it may litigate interests and positions on behalf of the State, that are not in the best
interest of Defendants Ed Vierk and Ruth Schuldt in their individual capacities. Plaintiff
further argues that the discovery produced on behalf of Defendants Ed Vierk and Ruth
Schuldt in their individual capacities may be adverse to the interests of the State. (Filing
No. 39).
Claims against state officials in their individual and official capacities can present
a conflict of interest.
The distinctions between suits against an official in his individual and
official capacities give rise to differing and potentially conflicting defenses.
Most notably, the government entity could defend itself by asserting that
the official whose conduct is in question acted in a manner contrary to the
policy or custom of the entity. . . . Also, an individual capacity defendant
could assert the defense of qualified immunity.
Johnson v. Bd. of Cnty. Comm'rs for Cnty. of Fremont, 85 F.3d 489, 493 (10th Cir.
1996). But even if “a potential conflict exists because of the different defenses available
to a government official sued in his official and individual capacities, it is permissible,
but not required, for the official to have separate counsel for his two capacities.”
Johnson, 85 F.3d at 493. Separate representation is not required until any “potential
conflict matures into an actual material conflict.” Johnson, 85 F.3d at 493.

There is no evidence of record establishing or indicating any conflict currently
exists between the State’s interests and the interests of the Defendants in their individual
capacities. And there is nothing showing the State’s responses, or willingness to forego

3

objections and respond, to Plaintiff’s anticipated discovery will either help or harm the
defendants in their individual capacities.

The plaintiff has failed to meet his burden of proving the Nebraska Attorney
General’s Office is disqualified from simultaneously representing all the named
defendants, including Defendants Ed Vierk and Ruth Schuldt in their individual
capacities.

Motion to Stay
(Filing No. 45)
Defendants Vierk and Schuldt have moved for summary judgment based on
qualified immunity; Defendant Vierk also asserts he is entitled to absolute immunity.
(Filing No. 41). The defendants have moved to stay discovery pending a ruling on the
qualified immunity defense. The plaintiff opposes the motion. (Filing No. 49).

To determine whether an official is entitled to qualified immunity, two questions
must be answered: (1) whether, after viewing the facts in the light most favorable to the
party asserting the injury, there was a deprivation of a constitutional or statutory right;
and (2) whether the right was clearly established at the time of the deprivation such that a
reasonable official would understand his conduct was unlawful in the situation he
confronted. Nord v. Walsh County, 757 F.3d 734, 739 (8th Cir. 2014). Summary
judgment may be denied on the issue of qualified immunity if there is a genuine issue of
material fact as to whether a reasonable officer could have believed his actions to be
lawful. Ngo v. Storlie, 495 F.3d 597, 602 (8th Cir. 2007).

The doctrine of qualified immunity is designed to protect state actors from
monetary damages and the burdens of litigation, including discovery.

Harlow v.

Fitzgerald, 457 U.S. 800, 817-818 (1982). Absent any showing that discovery is needed
4

to determine the merits of the defense itself, where qualified immunity is asserted, the
court will stay discovery until it considers and decides the issue of qualified immunity.
See Ballard v. Heineman, 548 F.3d 1132 (8th Cir. 2008).

Sundquist has listed the discovery he wants to pursue in this case, but he has not
explained how that discovery, or any responses to that discovery, could assist in
responding to Defendants’ motion for summary judgment based upon qualified
immunity. Fed. R. Civ. P. 56(f); Ballard, 548 F.3d at 1137; see also Britton v. Thompson,
No. 7:08cv5008, 2009 WL 2365389 (D. Neb. July 29, 2009). Defendants’ motion to stay
discovery will be granted.

Accordingly,

IT IS ORDERED:
1) Defendants’ objection, (Filing No. 40) is sustained.
2) Plaintiff’s motion to disqualify, (Filing No. 39), is denied..
3) Defendants’ motion to stay, (Filing No. 45), is granted.

October 16, 2015.
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.

5