Moore v. Wesbanco Bank, Inc. et al

Filing 21

ORDER denying 16 Motion to Disqualify Counsel. Signed by Magistrate Judge Norah McCann King on 6/15/2011. (nmk0)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JERRY E. MOORE, SR.
Plaintiff,

v.

Case No. 2:10-CV-514
JUDGE WATSON
MAGISTRATE JUDGE KING

WESBANCO BANK, INC., et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court for consideration of Plaintiff’s motion to disqualify
counsel appearing on behalf of Defendant Fry. Motion to Disqualify Counsel, Doc. No. 16
(“Motion to Disqualify”). The parties have consented to the undersigned, pursuant to 28 U.S.C.
§ 636(c), for the limited purpose of resolving this motion. Motion to Disqualify, p.3;
Memorandum of Defendant Daniel Fry in Opposition to Plaintiff’s Motion to Disqualify
Counsel, Doc. No. 17, p.7 (“Memorandum contra”). For the reasons that follow, the motion is
denied.

I.
Plaintiff Jeffrey E. Moore, Sr. [“Plaintiff”], who is African-American and who resides in
Belmont County, Ohio, brings this action against WesBanco Bank, Inc., and Daniel Fry,
identified as an Assistant Prosecuting Attorney for Belmont County, Ohio.1 Plaintiff claims that

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The Complaint also refers to “John Doe” deefendants.

he was discriminated against on account of his race and was deprived of his constitutional rights
in violation of 28 U.S.C. §§ 1981 and 1983 and R.C. § 4112.02. Plaintiff also asserts a claim
under 12 U.S.C. § 3401, et seq., as well as claims of invasion of privacy and abuse of process.
Plaintiff’s claims arise in connection with events that are alleged to have occurred during the
course of the prosecution of Plaintiff’s son for allegedly robbing the WesBanco Bank. The
Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343 and 1367.
The matter presently before the Court concerns Plaintiff’s request to disqualify the law
firm of Isaac, Brant, Ledman and Teetor [hereinafter “Isaac Brant”] from the representation of
Defendant Fry in this matter. An answer was filed on behalf of Defendant Fry on August 5,
2010 by Mark H. Troutman and Jeffrey A. Stankunas of Isaac Brant. Answer, Doc. No. 2. On
August 18, 2010, Mark Landes, also of Isaac Brant, entered an appearance on behalf of
Defendant Fry. Appearance of Counsel, Doc. No. 3.
As Plaintiff points out, Isaac Brant previously represented Plaintiff in an action in this
Court, Creer v. Moore, 2:02-CV-951.2 According to Plaintiff, that case “involved [P]laintiff’s
personal family relationships” and Plaintiff asserts that, during the pendency of the matter,
Plaintiff made confidential disclosures to Isaac Brant attorneys. Motion to Disqualify, at 2.
According to Plaintiff, “defense counsel’s prior representation of him and his disclosure of
personal information about both him and his family puts the defendants at an advantage in this
case . . . .” Id. Thus, Plaintiff requests that Isaac Brant be disqualified to continue as counsel for
Defendant Fry in this case.

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Creer involved claims against Jerry Moore, Plaintiff in this case, for malicious prosecution, abuse of
process, defamation, interference with business relations and intentional infliction of emotional distress. Summary
judgment in favor of Mr. Moore was entered in 2004. See Order, attached as Exhibit to Motion to Disqualify.

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Defendant Fry opposes the motion, arguing that there is no conflict of interest. Attorney
Landes, a lawyer with Isaac Brant who represented Plaintiff in Creer, avers that he “learned of
no information concerning [Plaintiff’s] personal or familial relationships” nor did he “receive
any other confidential information” during the course of his representation. Affidavit of Attorney
Mark Landes, at ¶ 5, attached as Exhibit A to Memorandum contra. Attorney Landes further
avers that his co-counsel in Creer “left the firm in 2005 without ever conveying any confidential
information to me regarding [Plaintiff] . . . .” Id., at ¶ 7. Attorney Landes explains that, because
Defendant Fry has been sued in his official capacity, “Belmont County’s policy with the
Counties of Ohio Risk Sharing Authority is providing him a defense.” Memorandum contra, at
1, n.1. Attorney Landes’ appearance in this case was a function of his capacity “as trial counsel
for the County Risk Sharing Authority.” Affidavit of Attorney Mark Landes, at ¶ 3. He has not
“actively participated in any discovery in the case.” Id. Attorney Landes withdrew as counsel
for Defendant Fry on May 16, 2011. Notice of Withdrawal of Co-Counsel Mark Landes, Doc.
No. 18. Attorneys Troutman and Stankunas of Isaac Brant remain as counsel for Defendant Fry.
In opposing the Motion to Disqualify, Defendant Fry argues that Plaintiff has failed to
articulate a basis for disqualification under the applicable legal standard. Defendant Fry also
argues that Plaintiff has waived the right to challenge Defendant’s counsel since the issue of
disqualification was not raised until February 2011.3 Plaintiff has not replied to these arguments.
The Court will now proceed to consider the merits of Plaintiff’s motion.

II.

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The actual Motion to Disqualify was not filed until May 6, 2011.

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The Court observes at the outset that the power to disqualify an attorney from
representation in a case is “incidental to all courts, and is necessary for the preservation of
decorum, and for the respectability of the profession.” Nilavar v. Mercy Health System Western Ohio, 143 F.Supp.2d 909, 912 (S.D. Ohio 2001) (Rice, J.) (citations omitted). Motions
to disqualify are, however, viewed with extreme caution. Id. “Because litigants often make such
motions for tactical reasons, and because disqualification of counsel impinges on a party’s right
to employ the counsel of its choice, the moving party bears the burden of establishing the need
for disqualification.” Id. (citations omitted).

III.
The Court first addresses the issue of timeliness of the Motion to Disqualify. In In re
National Century Financial Enterprises, Inc., No. 2:03-MD-1565, 2010 WL 1257598 at *9 (S.D.
Ohio March 29, 2010) (Graham, J.), this Court held that a motion to disqualify is properly denied
when the moving party fails to move for disqualification in a timely manner. A court must
consider the following five factors in determining whether a party has waived the right to seek
disqualification: “(1) the length of the delay in bringing the motion to disqualify; (2) when the
former client learned of the conflict; (3) whether the former client was represented by counsel
during the delay; (4) why the delay occurred; (5) whether the delay would result in prejudice to
the moving party.” Id., quoting Exterior Systems, Inc. v. Noble Composites, Inc., 175 F.Supp.2d
1112 (N.D. Ind. 2001).
In this case, Plaintiff waited some six months after the filing of Attorney Landes’ notice
of appearance before raising the issue of disqualification. Plaintiff offers no justification for this

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delay. Although the Court expresses concern about the length of time between Attorney Landes’
appearance and the filing of the Motion to Disqualify, the Court nevertheless declines to
determine the motion on the basis of untimeliness alone.
According to the United States Court of Appeals for the Sixth Circuit, a party seeking the
disqualification of an adversary’s attorney must establish three elements. First, there must be a
past attorney-client relationship between the party seeking disqualification and the attorney
sought to be disqualified; second, the subject matter of those relationships must be substantially
related; and third, the attorney must have acquired confidential information from the party
seeking disqualification. Dana Corp. v. Blue Cross & Blue Shield Mutual of Northern Ohio, 900
F.2d 882, 889 (6th Cir. 1990).
In considering these factors, the Court concludes that there is no basis for disqualifying
Isaac Brant from its representation of Defendant Fry in this action. Although Attorney Landes,
who previously appeared as counsel in this case, also represented Plaintiff some years ago in
Creer, there is no basis upon which to conclude that Creer was substantially related to this case.
Plaintiff’s bare conclusory assertion that Creer involved Plaintiff’s “personal family
relationships” is simply insufficient to establish a substantial relation between the actions.
Moreover, Attorney Landes affirmatively avers that he learned no confidential information
during Creer and no such information was relayed to him by any other co-counsel in that action,
all of whom have since left Isaac Brant. Plaintiff has failed to controvert those assertions. Thus,
Plaintiff has failed to satisfy the second and third parts of the Dana test.
Given the lack of support for the motion to disqualify and, in view of Attorney Landes’
withdrawal from this action, the Court concludes that Plaintiff’s Motion to Disqualify is without

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merit.

IV.
WHEREUPON, Plaintiff’s Motion to Disqualify, Doc. No. 16, is DENIED.

June 15, 2011
DATE

s/ Norah McCann King
NORAH McCANN KING
UNITED STATES MAGISTRATE JUDGE

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