Meidinger v. City of Rapid City et al
Filing
91
ORDER denying 84 Motion to Disqualify Counsel. Signed by US Magistrate Judge John E. Simko on 4/24/14. (JLS)
FILED
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
APR 24 2014
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RANDALLJ. MEIDINGER,
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CIV. 12-5064-JLV
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Plaintiff,
*
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vs.
* ORDER DENYING MOTION TO
* DISQUALIFY COUNSEL (DOC. 84)
CITY OF RAPID CITY; and
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PETER RAGNONE;
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STEVE ALLENDER;
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JOHN LEAHY, and
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SAM KOOIKER, in their individual
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capacities.
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*
*
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Defendants.
Pending is Plaintiff Randall Meidinger's motion to disqualify defense counsel. (Doc. 84).
BACKGROUND
This is a42 U.S.C. ยง 1983 case in which a Report and Recommendation was recently filed.
The Recommendation is to grant the motions for summary judgment of all defendants except Peter
Ragnone. Meidinger's claim under the Fourth Amendment survives against defendant Peter
Ragnone. Ragnone is employed by Rapid City as a police officer with the police department.
Meidinger brings this motion to disqualify under SDCL Ch. 16-18, App., Rule 1.7 of the
Professional Rules of Conduct. Rule 1.7 provides:
(a)
Except as provided by paragraph (b), a lawyer shall not represent a client if
the representation involves a concurrent conflict of interest. A concurrent
conflict of interest exists if:
(1)
the representation of one client will be directly adverse to another
client; or
(2)
(b)
there is a significant risk that the representation ofone or more clients
will be materially limited by the lawyer's responsibilities to another
client, a former client or a third person or by a personal interest ofthe
lawyer.
Notwithstanding the existence of a concurrent conflict of interest under
paragraph (a), a lawyer may represent a client if:
(1)
the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;
(2)
the representation is not prohibited by law;
(3)
the representation does not involve the assertion of a claim by one
client against another client represented by the lawyer in the same
litigation or same matter before a tribunal; and
(4)
each affected client gives informed consent, confirmed in writing. l
DISCUSSION
Standard.
"The decision to grant or deny a motion to disqualify an attorney rests in the discretion ofthe
trial court. . .. Because of the potential for abuse by opposing counsel, disqualification motions
should be subjected to 'particularly strict judicial scrutiny.,,2 "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.,,3 "The grant of a motion to disqualify an attorney as trial counsel is reviewed for an
abuse of discretion.
ISDCL 16-18, Rules of Professional Conduct, Rule 1.7, Vol. 11, p. 645.
2Harker v. C.I.R., 82 F.3d 806, 808 (8th Cir. 1996) (internal citations and quotation marks
omitted).
3Macheca Transp. Co. v. Philadelphia Indem. Co., 463 F.3d 827, 833 (8th Cir. 2006)
(internal citations omitted).
2
An abuse of discretion .., can occur in three principal ways: when a relevant factor
that should have been given significant weight is not considered; when an irrelevant
or improper factor is considered and given significant weight; and when all proper
factors, and no improper ones, are considered, but the court, in weighing those
factors, commits a clear error ofjudgment.''''
"Ultimately, the party seeking the disqualification ofopposing counsel bears the burden ofshowing
that disqualification is warranted. Although the moving party must satisfY a high standard ofproof
to sustain a disqualification motion, any legitimate doubts, which are created by the movant's proffer,
must be resolved in favor of disqualification."s
Analysis.
Meidinger asserts an actual conflict exists because one attorney represents all defendants. 6
As reasons to support the motion:
(a). Meidinger suggests potential conflicts exist because "[t]he city will likely argue that
Ragnone's conduct was outside the scope of City policy, or in contravention of the same, while
Ragnone will likely argue mere negligent error to avoid a finding of reckless or intentional mens
rea.,,7 In response the defendants assert "the City has acknowledged Ragnone' s actions were within
the scope of his employment ....,,8
(b). Meidinger suggests "[s]hould any party wish to negotiate a settlement, they would
essentially be precluded from doing so as it would prejudice another defendant, a matter in conflict
4Id. (internal citations omitted).
50/son v. Snap Products, Inc., 183 F.R.D. 539, 542 (D. Minn. 1998) (internal citations
omitted).
6Doc. 85, p. 4.
7Doc. 85, p. 4.
8Doc. 86, p. 3.
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by its very nature where an attorney represents both said defendants."9 Meidinger suggests further
"[a]t trial, one defendant may wish to object to testimony while another defendant sees it as
advantageous."lo In response the defendants assert they are being defended under a single insurance
policy which will pay any judgment and that they are "in a legal sense, united in interest. ,,11
(c). Meidinger argues "Ragnone testified that an inspection policy or practice was in place,
while Leahy testified that declarations at the Landfill scale were made on an honor system.,,12 The
defendants did not respond specifically to this argument, but urge generally "[t]here is no evidence
before the Court that a conflict or potential conflict exists.,,13 Defendants also assert no crossclaims
have been filed and that nowhere has a defendant alleged another defendant was acting outside the
scope of their employment with the City. 14
First, it is observed the motion is moot given that the Recommendation is to grant the
motions for summary judgment ofall defendants except for Ragnone. Ragnone is the lone remaining
defendant, so there cannot be a conflict.
On the merits, Meidinger suggests potential conflicts, but identifies no actual conflict.
Meidinger suggests that Ragnone and Leahy have testified contrary to each other about the existence
of an inspection policy. The inspection policy is not a material, predicate fact about which there is
a jury question under Meidinger's surviving Fourth Amendment claim that he was seized without
9Doc. 85, p. 4.
IODoc. 85, p. 4.
IIDoc. 86, p. 3.
12Doc. 85, p. 5.
13Doc. 86, p. 6.
14Doc. 86, p. 2.
4
factually truthful evidence to support the grand jury indictment and the arrest warrant which was
issued after the grand jury returned its indictment. While testimony about the inspection policy may
be admissible at trial, the issues for trial are the true or false nature of Ragnone's testimony about
Meidinger's confession and the true or false nature of Ragnone's testimony about sawdust as the
exclusive alternate cover. That Ragnone and Leahy might testify contrary to each other about the
inspection policy at trial does not create a conflict for counsel. If defense counsel advocates for or
against the existence of an inspection policy at trial, choosing either option is not directly adverse
to the best interests one client or the other client. It makes no difference to Ragnone or Leahy or any
other defendant whether there is or is not an inspection policy which Meidinger was obligated or not
obligated to follow. For the same reason there is not "a significant risk that the representation ofone
or more clients will be materially limited by the lawyer's responsibilities to another client."15
The City has acknowledged all individual employee defendants were acting within the scope
oftheir employment. The City is defending the Monell claim by arguing there was no violation of
Meidinger's constitutional rights by anyone, as distinguished from arguing that Ragnone, or any
defendant, was acting outside the scope of employment. The Recommendation to grant the City's
motion for summary judgment is based upon the absence of a City custom or policy for police
officers generally or Ragnone specifically to testify falsely. Defense of the City against the Monell
claim does not require defense counsel to choose an option which is directly adverse to the best
interests one client or another. Defense of the City does not require defense counsel to urge
conflicting or potentially conflicting defenses among the defendants. That Ragnone or any other
defendant was acting contrary to a City custom or policy is not the defense-the defense is that there
15Rule of Professional Responsibility 1.7(a)(2).
5
was no City custom or policy for police officers to testify falsely. Additionally, hypothetically
pretending there was such a policy, the City has acknowledged Ragnone was acting within the scope
of his employment, i.e. not in a manner contrary to the hypothetical City custom or policy.
Finally, defense counsel has acknowledged he is "well aware of the South Dakota Rules Of
Professional Responsibility and the standards under Rule 1.7. " which provide: 16
(b)
Notwithstanding the existence of a concurrent conflict of interest under
paragraph (a), a lawyer may represent a client if:
(1)
the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;
(2)
the representation is not prohibited by law;
(3)
the representation does not involve the assertion of a claim by
one client against another client represented by the lawyer in
the same litigation or same matter before a tribunal; and
(4)
each affected client gives informed consent, confirmed in
writing.
The defendants' untimeliness defense against the motion to disqualify has been considered
but rejected.
Issues relating to a lawyer's professional responsibility are appropriate for
consideration at any time.
It is ORDERED that plaintiffs motion to disqualify defense counsel is DENIED both as
moot and on the merits.
Dated April 24, 2014.
BY THE COURT:
Simko
. ed States Magistrate Judge
16Doc. 86, p. 7.
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