COLE v. TOWN OF MORRISTOWN et al

Filing 27

MEMORANDUM OPINION. Signed by Magistrate Judge Mark Falk on 5/18/11. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Civil Action No. 10-4706 (WJM)

FRANCINE COLE,
Plaintiff,
v.
TOWN OF MORRISTOWN, et al.,

MEMORANDUM OPINION

Defendants.

FALK, U.S.M.J.
Before the Court is Plaintiff’s motion to disqualify the law firm of De Yoe,
Heissenbuttel & Buglione, LLC, as counsel for Defendants Town of Morristown,
Morristown Mayor Tim Dougherty, the Morristown Police Department, and eleven (11)
individuals associated with the Town of Morristown. [CM/ECF No. 20.] The motion is
opposed. No oral argument was heard. Fed. R. Civ. P. 78(b). The motion is denied.
I.

BACKGROUND
On September 14, 2010, Plaintiff, Francine Cole, filed a 427 paragraph, nine (9) count

Complaint against the Township of Morristown, the Morristown Police Department, Saint
Claire’s Hospital, and approximately 15 additional individuals associated with either the
Town or Saint Claire’s. In short, Plaintiff alleges, among other things, that she was falsely
arrested, assaulted, and subjected to improper involuntary commitment at Saint Claire’s

Hospital in violation of 42 U.S.C. §§ 1983-1986, and New Jersey law relating to involuntary
commitments, see, e.g., N.J.S.A. 30:4-27.6.
On November 15, 2010, the law firm of De Yoe, Heissenbuttel & Buglione, LLC
(“the De Yoe firm”) entered an appearance on behalf of the Town of Morristown, the
Morristown Police Department, the Mayor of Morristown, and eleven (11) additional Town
employees (“the Morristown Defendants”). [CM/ECF No. 4.]
On January 25, 2011, the Morristown Defendants filed a motion to dismiss Plaintiff’s
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). [CM/ECF No. 17.]
In response, Plaintiff filed a brief in opposition to the motion to dismiss and also
notice of a cross-motion to disqualify the De Yoe firm. [CM/ECF Nos. 19-20.] The crossmotion is not accompanied by a separate brief. Rather, Plaintiff’s brief in opposition to the
motion to dismiss contains a single point heading, consisting of one paragraph, apparently
seeking to disqualify the De Yoe firm. The brief does not cite a Rule of Professional
Conduct that has allegedly been violated and simply concludes that disqualification is
warranted because the interests of the Town of Morristown and its employees will, and
supposedly already have, diverged. Defendants have opposed the cross-motion to disqualify.
[CM/ECF No. 21.]
II.

ANALYSIS
Disqualification motions are disfavored. See Rohm & Haas Co. v. Am. Cyanamid

Co., 187 F. Supp. 2d 221, 226 (D.N.J. 2001). The party seeking disqualification must carry
a heavy burden and must meet a high burden of proof before a lawyer will be disqualified.
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See Kaselaan & D’Angelo Assoc., Inc. v. D’Angelo, 144 F.R.D. 235, 238 (D.N.J. 1992).
Disqualification is considered “a drastic measure which courts should hesitate to impose
except when absolutely necessary.” Alexander v. Primerica Holdings, Inc., 822 F. Supp.
1099, 1114 (D.N.J. 1993). Although violation of a Rule of Professional Conduct usually
results in disqualification, it is “never automatic,” United States v. Miller, 624 F.2d 1198,
1201 (3d Cir. 1980), and courts must consider “countervailing policies, such as permitting
a litigant to retain counsel of his choice and enabling lawyers to practice without excessive
restrictions.” Id.
Disqualification of the De Yoe firm is not appropriate. First, Plaintiff’s attempt to
meet her heavy burden consists of a four sentence paragraph of perfunctory argument without
citation to any Rule of Professional Conduct allegedly violated. This fails to disclose or
explain any conflicts and fails to satisfy Plaintiff’s burden, which alone warrants denial of
the motion.
Second, Defendants’ pre-answer motion to dismiss seeks dismissal of “all claims”
against the Morristown Defendants. [Defs.’ Notice of Motion; CM/ECF No. 17.] There is
no evidence the Morristown Defendants are in any conflict, much less anything that would
justify disqualification.
Finally, the Morristown Defendants explain that Morristown is a member of the New
Jersey Intergovernmental Insurance Fund (“NJIIF”), and that the NJIIF’s General Counsel
selects attorneys for the Town, including the De Yoe firm in this case, only after a
preliminary investigation is conducted into the nature of the claims and the parties involved.
(Defs.’ Br. 8.) This is apparently done to avoid any potential conflicts. (Id.)
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III.

CONCLUSION
For the above stated reasons, Plaintiff’s cross-motion to disqualify is denied.

s/Mark Falk
MARK FALK
United States Magistrate Judge

Dated: May 18, 2011

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