Lemus v. Olaveson et al

Filing 79

ORDER Granting in part and Denying in part 65 Emergency Motion to Continue Trial. Calendar Call continued to 8/17/2016 01:30 PM in LV Courtroom 6A before Judge James C. Mahan. Jury Trial continued to 8/22/2016 09:00 AM in LV Courtroom 6A before Judge James C. Mahan. FURTHER ORDERED that 72 Stipulation for extension of motion in limine deadlines is Denied as moot. Signed by Judge James C. Mahan on 5/23/16. (Copies have been distributed pursuant to the NEF - JM)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

JHONNY DARIO LEMUS,

8

Plaintiff(s),

9
10

Case No. 2:14-CV-1381 JCM (NJK)
ORDER

v.
ROBERT JAMES OLAVESON, et al.,

11

Defendant(s).

12
13

Presently before the court is plaintiff Jhonny Dario Lemus’ emergency motion to continue

14

trial. (ECF No. 65). Defendants Robert James Olaveson and Andrus Transportation Services, Inc.

15
16

filed a response. (ECF No. 70). Plaintiff has not filed a reply.
Also before the court is the parties’ stipulation to continue the motion in limine deadline.
(ECF No. 72).

17

Trial for this matter is set for June 20, 2016. Despite having actual notice of this trial date

18

since December 30, 2015, (see ECF No. 58), plaintiff’s counsel’s firm, Las Vegas Personal Injury

19

(“LVPI”), hired an associate from defendants’ counsel’s firm on May 2, 2016, less than two

20

months before trial. Because the associate had “a substantial role in [and] primary responsibility

21

for [this] matter” when he worked for defense counsel, his association with plaintiff’s counsel’s

22

firm disqualified any lawyer at plaintiff’s counsel’s firm from representing plaintiff under Nevada

23

Rule of Professional Conduct (“Rule”) 1.10(e). NEV. R. PROF’L CONDUCT 1.10(e)(1).

24
25

Notwithstanding Rule 1.10, plaintiff’s counsel refused to disqualify himself from the case
at defense counsel’s request.1 (See ECF No. 65 at 12). Defense counsel was forced to file a motion

26
Plaintiff’s counsel should have immediately terminated his representation of plaintiff
upon hiring former defense counsel given the new associate’s substantial role in the matter. His
continued “knowing represent[ation]” of plaintiff despite his new hire’s disqualification under
Rule 1.9 is a violation of Rule 1.10(e). His failure to immediately remove himself from the case
was unprofessional. His continued refusal to do so after defense counsel brought the conflict to his
1

27
28
James C. Mahan
U.S. District Judge

1

for disqualification, which the court heard on an expedited basis. Citing Rule 1.10(e)(1),

2

Magistrate Judge Koppe granted the motion for disqualification on May 19, 2016. (ECF No. 73 at

3

45).

4
5
6
7

Plaintiff filed the motion to continue trial dates prospectively while the motion for
disqualification was still pending. (See docket). He argues that he and his now disqualified counsel
will need more than one month to find new counsel and provide that counsel sufficient time to
prepare for trial.2 He asks the court to continue the trial for 120 days to a date in October, delaying
the trial a full five months.

8

Defendants argue that the hiring of their counsel’s former associate was dilatory and that

9

further delay in this nearly two-year old matter will prejudice their case. They argue that LVPI

10

could have waited until trial had finished in late June to hire the associate and that any knowing

11

decision to hire him regardless of the impending trial was a deliberate decision to stall the matter.

12

The court finds itself in the unfortunate position of choosing between punishing the

13

plaintiff for his former attorney’s transgressions in this matter by holding him to the current trial

14
15
16

date or punishing defendants for plaintiff’s former counsel’s transgressions by delaying a trial over
their opposition.
There is no indication on the record that plaintiff was aware of his attorney’s hiring actions.
The court therefore finds that forcing plaintiff to attempt to find competent counsel that is willing

17

to try an unfamiliar case on less than one month’s notice would be inequitable and that a reasonable

18

delay will not prejudice defendants materially.

19

Plaintiff’s request for a continuance of 120 days to a date five months from now is

20

unreasonable, however, in light of defendants’ protests. The court will instead continue the matter

21

for sixty (60) days, providing a reasonable period of approximately ninety (90) days for plaintiff

22

to find representation and for the new attorney to familiarize himself with the case.

23
24
25
26

attention caused defense counsel to expend valuable legal resources. It also caused the U.S.
taxpayer to expend the judicial resources of two of this court’s chambers. Moving forward, the
court advises counsel to treat the rules of professional conduct as rules and not mere suggestions.
2

27
28
James C. Mahan
U.S. District Judge

Plaintiff is currently represented by a second attorney of record: Kristian LaVigne.
Defendants argue that Mr. LaVigne is capable of taking this case to trial as scheduled. Plaintiff
does not make any representation with respect to Mr. LaVigne’s role in this case or his ability to
try the matter. The court construes this an indication that Mr. LaVigne, whatever his role may be,
is either not prepared or not inclined to go to trial in this case.
-2-

1
2

Given the continuance, the parties’ stipulation for an extension of motion in limine
deadlines is moot. Motions in limine will be due thirty days before trial pursuant to LR 16-3.3

3

Accordingly,

4

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff Jhonny Dario

5
6
7
8
9
10
11
12

Lemus’ emergency motion to continue trial (ECF No. 65) be, and the same hereby is, GRANTED
in part and DENIED in part, consistent with the foregoing.
IT IS FURTHER ORDERED that the trial scheduled for June 20, 2016, at 9:00 A.M. and
calendar call scheduled for June 15, 2015, at 1:30 P.M. be, and the same hereby are, VACATED.
IT IS FURTHER ORDERED that trial in this matter be set for August 22, 2016, at 9:00
A.M. and calendar call be set for August 17, 2016, at 1:30 P.M.
IT IS FURTHER ORDERED that the parties’ stipulation for an extension of motion in
limine deadlines (ECF No. 72) be, and the same hereby is, DENIED as moot.
DATED May 23, 2016.

13
14

__________________________________________
UNITED STATES DISTRICT JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28
James C. Mahan
U.S. District Judge

-3-