Christensen v. Smith et al

Filing 24

MEMORANDUM DECISION denying without prejudice 12 Motion to Disqualify Counsel, Motion for Sanctions; denying without prejudice 18 Motion to Disqualify Counsel, Motion for Sanctions. Signed by Magistrate Judge Dustin B. Pead on 2/23/2015. (blh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

DEAN H. CHRISTENSEN,
Plaintiffs,

MEMORANDUM DECISION
Case No. 2:14-cv-00784-CW-DBP

v.

District Judge Clark Waddoups

GERALD K. SMITH, et al.,

Magistrate Judge Dustin B. Pead

Defendants.

I.

INTRODUCTION
This case was referred to the Court under 28 U.S.C. 636(b)(1)(B). (Dkt. 13.) The

underlying allegations include conspiracy and fraud related to an oil and gas operation. Plaintiff
moves to have counsel for Defendants disqualified and requests sanctions. (Dkt. 12 & 18.)
II.

ANALYSIS
Plaintiff argues that counsel facilitated filing of false declarations and should therefore be

disqualified. (Dkt. 12 & 18 at 4–6.) Defendants argue that Plaintiff failed to comply with the
requirements of Rule 11 in seeking sanctions. Defendants do not address the issue of
disqualification. (Dkt. 16.) The Court has discretion when deciding whether to disqualify
counsel. Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1383 (10th Cir. 1994).
Plaintiff’s allegations of perjury are not supported by the record. “Contradictions and
changes in a witness’s testimony alone do not constitute perjury . . . .” Tapia v. Tansy, 926 F.2d
1554, 1563 (10th Cir. 1991). Here, Defendant Ray Ash filed a declaration claiming he did not
receive service of the complaint and summons, and later Ash retracted that claim and
acknowledged that he had been served. (Compare Dkt. 8, Attachment 3 and Dkt. 15, Attachment

1.) Defendant Ash claims that he mistook the complaint and summons in this case for documents
related to a state court case involving the same defendants. Such a mistake is understandable for
a defendant unfamiliar with litigation. Ash withdrew his statement and his motion once he
realized his mistake. The time between the original declaration and the withdrawal was just over
two weeks. (See Docket.) On the facts presented, the Court does not find that Ash intentionally
misstated information in his declaration. Accordingly, the Court will not infer any improper
motive on the part of Ash’s counsel. Based on the foregoing, the Court denies Plaintiff’s motion
to disqualify counsel and the request for sanctions.
III.

ORDER
For the reasons analyzed above, the Court DENIES Plaintiff’s motion to disqualify

counsel and request for sanctions without prejudice. (Dkt. 12 &18.) 1 Plaintiff may renew the
motion if new information comes to light.
Dated this 23rd day of February, 2015.

By the Court:

Dustin B. Pead
United States Magistrate Judge

1

Plaintiff included identical requests for disqualification and sanctions in his memoranda
opposing defendants’ motion to dismiss (Dkt. 11.) and motion to set aside the default. (Dkt. 17.)
These requests are denied for the additional reason that motions may not be made in a response
or reply memorandum. D.U. Civ. R. 7-1(b)(1)(A).