Martin et al v. Local 556, Transportation Workers Union of America, AFL-CIO

Filing 114

MEMORANDUM OPINION AND ORDER denying 112 MOTION to Disqualify Defense Counsel filed by Stacy K Martin. (Ordered by Judge Sidney A Fitzwater on 8/18/2017) (Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
STACY K. MARTIN, et al.,
Plaintiffs,
VS.
LOCAL 556, TRANSPORTATION
WORKERS UNION OF AMERICA,
AFL-CIO,
Defendant.

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§ Civil Action No. 3:14-CV-0500-D
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MEMORANDUM OPINION
AND ORDER
Plaintiff Stacy K. Martin (“Martin”) moves to disqualify Edward B. Cloutman, III,
Esquire (“Cloutman”) and his law firm from representing defendant Local 556,
Transportation Workers Union of America, AFL-CIO (“TWU Local 556”) in this lawsuit.
Concluding that the motion is untimely and that Martin has waived his right to move for
disqualification, the court denies the motion.1
I
Martin contends that Cloutman should be disqualified because he served as counsel
for defendant TWU Local 556 when Martin was the president from May 2012 through May
2013. Martin maintains that Cloutman and Martin “worked very closely” and shared
1

The court granted leave for Martin to file the motion to disqualify after the applicable
motion deadline because of the importance of the issue presented. In granting leave,
however, the court did not express an opinion regarding the merits of the motion, including
the merits of TWU Local 556’s contention that Martin had waived his motion to disqualify
Cloutman and his law firm.

“numerous confidences.” P. Br. 2. TWU Local 556 opposes the motion, contending, inter
alia, that Martin has waived his arguments in support of disqualifying Cloutman and his law
firm.2
Martin and two other plaintiffs filed this lawsuit on February 10, 2014,3 but Martin
did not move to disqualify Cloutman and his law firm until February 13, 2017, over three
years later. The court denied the motion the same day because Martin had filed it after the
motion deadline, without leave of court. On February 14, 2017 Martin filed a motion for
leave to file his motion to disqualify, which TWU Local 556 opposed. At the time Martin
filed his motion for leave, the trial was set for March 20, 2017, and the pretrial conference
was set for March 16, 2017.4 The court on February 21, 2017 vacated the trial setting,
indicating that it would set the case for trial after resolving the motion to disqualify. The
court ordered Martin to supplement his motion for leave to address the four-factor test for
modifying the scheduling order. Martin supplemented his motion on February 28, 2017, and
the court granted Martin’s motion for leave on May 4, 2017. The instant motion to disqualify
was docketed the same day.
Martin essentially explains his extreme delay in moving for disqualification based on
2

TWU Local 556 raised this argument in its opposition to Martin’s motion for leave.
The court will consider it as part of TWU Local 556’s opposition to the motion to disqualify.
3

No other plaintiff joins Martin’s motion to disqualify.

4

The court set the case for trial on the two-week docket of March 20, 2017 in an order
filed on November 22, 2016. The court set the specific trial and pretrial conference dates of
March 20, 2017 and March 16, 2017, respectively, in an order filed on February 3, 2017,
before Martin filed his initial, untimely motion to disqualify.
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his temporary pro se status in this case. When Martin and the other plaintiffs filed this
lawsuit, they were represented by counsel. Plaintiffs’ counsel moved to withdraw on July
16, 2015, and the court granted the motion on August 11, 2015. Martin proceeded pro se
from then until November 7, 2016, when his current counsel filed a notice of appearance.
In his court-ordered supplement to his motion for leave, Martin maintains that he did not file
his motion by the applicable motion deadline because “the depth and breadth of the
relationship, and thus the conflict, was not fully appreciated until February of this year,” P.
Feb. 28, 2017 Br. 3; that it is unknown what Martin’s former attorney may have known about
the relationship between Martin and Cloutman; and that, although there was still time to file
a motion to disqualify after Martin’s counsel withdrew, Martin as a pro se litigant did not
himself know what to do, much less know to file a motion to disqualify.
II
“[L]awyer conflict of interest problems ought to be brought up long before the date
of trial in an atmosphere which does not cast a shadow over the trial itself.” Redd v. Shell
Oil Co., 518 F.2d 311, 316 (10th Cir. 1975). The court therefore has discretion to consider
a motion for disqualification waived if not promptly raised. Tr. Corp. of Mont. v. Piper
Aircraft Corp., 701 F.2d 85, 88 (9th Cir. 1983) (reviewing district court denial of motion to
disqualify as untimely for abuse of discretion). Courts have held motions to disqualify were
waived where “delays rang[ed] from one to over two years[, the] motions to disqualify [were]
made after substantial preparation of the case had been completed, or the motions [were]
made on the eve of trial.” City of El Paso v. Salas-Porras Soule, 6 F.Supp.2d 616, 621-22
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(W.D. Tex. 1998) (collecting cases). Martin relies heavily on Salas-Porras Soule, in which
the court held that a five-month delay between discovery of an alleged conflict and filing of
the motion to disqualify did not constitute waiver. Id. at 622. But Martin’s situation is not
comparable to Sala-Porras Soule; indeed, all three scenarios that the court noted would
trigger waiver are present in the instant case. See id. at 621-22. Martin knew of the potential
conflict when he worked with Cloutman from 2012 through 2013—well before plaintiffs
filed suit on February 10, 2014. He first filed the motion over three years into the case and
long after discovery had closed in October 2015. And at the time he filed his initial motion
to disqualify on February 13, 2017 (which was denied because it was filed without leave of
court), the pretrial conference and the trial were already set for March 16 and 20, 2017, a
little more than one month away. Martin has not cited any case in which a court granted a
motion to disqualify under these circumstances. Additionally, although Martin may be
prejudiced by Cloutman’s participation in the trial of this case, TWU Local 556 will surely
be prejudiced by the loss of its counsel (who has extensive knowledge of the case) on the eve
of trial.5

5

Although there currently is no trial setting, it is correct to speak in terms of the “eve
of trial.” The court’s February 21, 2017 memorandum opinion and order explains that the
case will be promptly scheduled for trial once Martin’s motion to disqualify is decided, and
that the parties must proceed accordingly.
After considering defendant’s concerns about a trial
continuance, the court concludes that it should grant the motion
with the following requirement. The trial will not commence as
scheduled on March 20, 2017, but the parties must continue to
make all required pretrial filings as if this were the trial date.
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Accordingly, Martin’s motion to disqualify is denied.
SO ORDERED.
August 18, 2017.

_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

That way, once the trial is reached, no delay will be necessary
to complete pretrial filings. The pretrial conference scheduled
for March 16, 2017 is canceled and will be rescheduled. After
Martin’s February 14, 2017 motion for leave to file motion to
disqualify defense counsel has been resolved—either because
the court denies leave to file the motion or, having granted
leave, after the motion is decided on the merits—the court will
review its calendar, provide counsel a proposed trial date or
dates, and permit counsel to advise the court whether they have
any material conflicts with the trial date or dates under
consideration.
Feb. 21, 2017 Mem. Op. 3 (emphasis added).
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