Allred et al v. Pacificorp

Filing 173

MEMORANDUM DECISION AND ORDER affirming Magistrate Judge's 134 Order. Signed by Judge David Nuffer on 2/24/16 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
PHILLIP E. ALLRED, et al.,,

MEMORANDUM DECISION AND
ORDER OVERRULING RUSSELL A.
CLINE’S OBJECTION

Plaintiffs,
v.

Case No. 2:15-CV-00095 DN
PACIFICORP, d/b/a ROCKY MOUNTAIN
POWER COMPANY, an Oregon Company

District Judge David Nuffer
Magistrate Judge: Evelyn Furse

Defendant.
Attorney Russell A. Cline (“Mr. Cline”) objected 1 to Magistrate Judge Furse’s order 2
denying his motion 3 for partial reconsideration of her order 4 disqualifying him as counsel. Upon
review of the record, Mr. Cline’s objection is overruled.
BACKGROUND
Magistrate Judge Furse disqualified Mr. Cline after finding he had committed numerous
ethical violations in the course of his representation. Mr. Cline filed a motion for partial
reconsideration of Judge Furse’s order and presented three arguments for his reinstatement as
plaintiffs’ counsel: 1) to prevent claims from languishing or being lost; 2) his proposed course of
action would correct the ethical violations identified in Judge Furse’s order; and 3) to reinstate
the original intent of the plaintiffs who have not obtained new counsel or appeared pro se
following his disqualification. Judge Furse issued an order denying Mr. Cline’s motion to

1

Rule 72 Objection to Order (Objection), docket no. 144, filed Jan. 8, 2016.

2

Order Denying Motion for Partial Reconsideration of Oct. 19, 2015 Order (Order), docket no. 134, issued Dec. 28,
2015.
3

Motion for Partial Reconsideration of Oct. 19, 2015 Order (Motion) at 1-3, docket no. 115, filed Nov. 19, 2015.

4

Order Granting Motion to Disqualify Counsel (Disqualification Order), docket no. 106, issued Oct. 18, 2015.

reconsider on the grounds that reinstating him would nullify the disqualification order and that
no legal basis existed for granting the motion. Mr. Cline’s Objection related to that order.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 72(a), “[t]he district judge in the case must
consider timely objections and modify or set aside any part of the order that is clearly erroneous
or is contrary to law.” The magistrate judge’s decision must be affirmed unless “on the entire
evidence [one] is left with the definite and firm conviction that a mistake has been committed.” 5
Whether an attorney should be disqualified following a violation of the ethical rules is a
determination left to the discretion of the court. 6
ANALYSIS
I.

DENIAL OF MOTION FOR PARTIAL RECONSIDERATION
WAS NOT CLEARLY ERRONEOUS

In the Disqualification Order, Judge Furse found that Mr. Cline filed a lawsuit on behalf
of the plaintiffs prior to speaking with them and without their knowledge or consent. 7 Mr. Cline
filed his motion for partial reconsideration seeking to be reinstated as the plaintiffs’ attorney
unless the plaintiffs expressly indicated they did not want him to represent them. After careful
evaluation, Judge Furse denied the motion because the solutions Mr. Cline proposed only
perpetuated the original issue surrounding his prior representation: the absence of any clear
indication that any of the plaintiffs wanted Mr. Cline to represent them in this litigation. 8 Mr.
Cline points to the original engagement letter and asserts the plaintiffs agreed to his

5

Flying J v. TA Operating Corp., No. 1:06cv00030TC, 2008 WL 2019157, at *1 (D. Utah May 7, 2008) (citing
Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988)).

6

Weeks v. Indep. Sch. Dist. No. 1-89 of Okla. Cty, Okla., Bd. of Educ., 230 F.3d. 1201, 1211 (10th Cir. 2000).

7

Disqualification Order at 13.

8

Order at 2.

2

representation. But Judge Furse found this letter to be misleading and not a clear indication that
the plaintiffs ever desired Mr. Cline’s representation. 9
Mr. Cline contends that an injustice will occur if he is not reinstated as the plaintiffs’
attorney because many of the plaintiffs may lose their opportunity to bring a claim due to the
statute of limitations.10 Judge Furse rejected this argument on the grounds that Mr. Cline had
already informed the plaintiffs that he was no longer representing them and that if they did not
retain another attorney or appear pro se, they could lose the opportunity to bring their claims. 11
Consequently, each of the plaintiffs had notice of these potential issues. If they desired to further
litigate their cases, they were free to do so either by retaining another attorney or appearing pro
se. They were also free not to pursue their claims if they so desired. Preserving the claims is the
plaintiffs’ responsibility, not Mr. Cline’s, who no longer represents them. Therefore, the denial
of Mr. Cline’s motion was not clearly erroneous.
II.

DENIAL OF MOTION WAS NOT CONTRARY TO LAW

Mr. Cline has failed to present any legal basis for overruling the order. To grant a motion
to reconsider there must be a showing of: “1) an intervening change in the controlling law, 2) the
availability of new evidence, [or] 3) the need to correct clear error or prevent manifest
injustice.” 12 Judge Furse correctly applied this standard and held that none of these grounds
applied to Mr. Cline’s motion. 13

9

Disqualification Order at 9–14.

10

Objection at 9.

11

Order at 3.

12

Id. at 2–3 (citing Brunmark Corp. v. Samson Res. Corp., 57 F.3d 941, 948 (10th Cir. 1995)).

13

Id. at 3.

3

The only argument Mr. Cline points to is the principle that a party “has an interest in
being able to retain counsel of its choice.” 14 Although this principle is generally true, it is not
absolute. When counsel of choice commits an ethical violation, the trial court may exercise its
discretion in deciding whether to disqualify the attorney. 15 Judge Furse found Mr. Cline had
committed numerous ethical violations, and determined disqualification was the appropriate
course of action. She was well within her discretion to do so. Therefore, Judge Furse’s order was
not contrary to law.
ORDER
Mr. Cline’s Objection 16 is OVERRULED and Magistrate Judge Furse’s order is
AFFIRMED.
Signed February 24, 2016.
BY THE COURT

________________________________________
District Judge David Nuffer

14

Objection at 10.

15

Weeks, 230 F.3d. at 1211.

16

Docket no. 144.

4