Hewlett v. Utah State University et al

Filing 169

AMENDED MEMORANDUM DECISION AND ORDER Denying 145 Motion to Disqualify Counsel. Signed by Magistrate Judge Brooke C. Wells on 3/29/2019. (las)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH—CENTRAL DIVISION
VICTORIA HEWLETT,
Plaintiff,
v.
UTAH STATE UNIVERSITY, SIGMA CHI
CORPORATION, GAMMA KAPPA
FOUNDATION, GAMMA KAPPA,
JASON RELOPEZ, GAMMA KAPPA
HOUSE CORPORATION, and John and
Jane Does I-XX,
Defendants.

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Case No. 2:16:cv-01141-DN
District Judge David Nuffer
Magistrate Judge Brooke Wells
AMENDED MEMORANDUM
DECISION DENYING MOTION
TO DISQUALIFY COUNSEL

This matter is referred to the undersigned in accordance with 28 U.S.C. 636(b)(1)(A) by
Judge David Nuffer.1 Before the court is Plaintiff Victoria Hewlett’s (Plaintiff) Motion to
Disqualify Counsel for Gamma Kappa,2 specifically Saul Ewing Arnstein & Lehr, LLP and Kipp
& Christian. On November 7, 2018, the court heard oral argument on the pending motion and
took the matter under advisement.3 After considering the briefs submitted by counsel, as well as
oral argument, the court DENIES the Motion to Disqualify Counsel.4

1

ECF No. 52.
ECF No. 145.
3 That day the court also heard argument on Defendant Gamma Kappa’s Motion to Strike
Declaration of Todd Wahlquist [ECF No. 148]. The motion was granted and the court issued a
written Order regarding the same on November 15, 2018. [ECF No. 160]. Accordingly, the
court did not consider the Wahlquist Declaration in its analysis of the Motion to Disqualify.
4 The court notes Sigma Chi Corporation, Gamma Kappa Alumni Foundation, and Gamma
Kappa House Corporation (Sigma Chi Defendants) joined in Gamma Kappa’s opposition to the
Motion to Disqualify. [ECF No. 151].
2

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BACKGROUND AND ANALYSIS
The court begins by acknowledging the facts in this case are disturbing. Plaintiff alleges
in July 2015, at the age of 19, she was furnished alcohol and was then beaten and raped by a
fellow Utah State University (USU) student at the Gamma Kappa chapter house of Sigma Chi
fraternity.
Plaintiff filed her original complaint in this action on November 16, 2016.5 The court
has original jurisdiction under 28 U.S.C. ⸹1332 (diversity).6 An Amended Complaint was filed
on July 12, 2017.7 Thereafter, a Second Amended Complaint was filed March 9, 2018,8 and two
weeks later a Second Amended Complaint and Jury Demand (Second Version)9 (the Complaint)
was filed. The Complaint contains eight causes of action––four are against the Fraternity
Defendants,10 one was against USU, and the remaining three are against Defendant Jason
Relopez (Relopez), the alleged rapist. The causes of action against the Fraternity Defendants
are: 1) negligence; 2) premises liability; 3) negligent infliction of emotional distress; and 4)
vicarious liability. The claim against USU for alleged violation of 20 U.S.C. ⸹1981 (Title IX)
was dismissed with prejudice per stipulation of the parties.11 On April 2, 2018, Plaintiff filed a
Motion to Disqualify Counsel for Gamma Kappa (the motion).12
About a month before filing the motion, on March 1, 2018 (sixteen months after
commencing this action), the Plaintiff filed a complaint against 24 former members or Chapter

5

ECF No. 2.
ECF No. 2-1.
7
ECF No. 57.
8
ECF No. 132.
9
ECF No. 142. This is technically a Third Amended Complaint.
10 The Fraternity Defendants are collectively Gamma Kappa, Sigma Chi Corporation, Gamma
Kappa Alumni Foundation and Gamma Kappa House Corporation.
11
ECF No. 157.
12
ECF No. 145.
6

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Officers of Gamma Kappa Sigma Chi fraternity (GKSC).13 The complaint in the state action
alleges five causes of action against these 24 individuals: 1) negligent infliction of emotional
distress; 2) intentional and/or negligent infliction of emotional distress; 3) negligence; 4) civil
conspiracy; and 5) premises liability. The causes of action in the state case arise from the same
subject matter as this action. None of the 24 defendants in the state action are named as
defendants in this action.14 In fact, not all of the defendants in the state court action have been
served. Only three of them have filed notices of appearance for counsel. Also, the state court has
issued numerous continuances at Plaintiff’s request. Plaintiff alleges she has not prosecuted the
state action because she is waiting for this court to issue a ruling on the pending motion.
In this case, the original Scheduling Order was entered in January 2017.15 In July 2017,
Plaintiff filed a Motion to Compel Various Defendants to Provide Contact Information for
Witnesses and Allow Contact with Witnesses16 and a Motion to Compel Various Defendants to
Respond to Interrogatory No. 1.17 The crux of these motions was that the Fraternity Defendants
collectively identified over 110 individuals with discoverable information, but did not provide
contact information for any of these witnesses, even though Plaintiff alleged they were not
officers, agents or control group witnesses. In July 2017, the court entered an order as to both
motions, granting the first one and denying the second.18 In its order, the undersigned explained:
Under Rule 4.2(d)(2) of the Utah Rules of Professional Conduct, a “control group” means
the following persons:

The court takes judicial notice of the state court action filed in the Third Judicial District
Court, Hewlett v. Renner, 180901248.
14 Plaintiff dismissed Defendant Matthew Morgan (Morgan) from the state action.
15
See ECF No. 42. The court vacated the Pre-trial Conference and entered an order which state
and deadlines and hearings will be rescheduled upon the undersigned’s ruling on the motion. See
ECF No. 164.
16
ECF No. 49.
17
ECF No. 51.
18 See ECF No. 63.
13

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(A) the chief executive officer, chief operating officer, chief financial officer, and
the chief legal officer of the organization; and (B) to the extent not encompassed
by Subsection (A), the chair of the organization's governing body, president,
treasurer, secretary and a vice-president or vice-chair who is in charge of a
principal business unit, division or function (such as sales, administration or
finance) or performs a major policy-making function for the organization; and (C)
any other current employee or official who is known to be participating as a
principal decision maker in the determination of the organization’s legal position
in the matter. (Emphasis added).19
Pursuant to Rule 4.2, the court found that under the “control group” definition, Fraternity
Defendants’ counsel “can reasonably claim to represent current and former officers for the
relevant period (i.e. from 2012 when Mr. Relopez joined the fraternity to now)[.]”20 The court
explained that “[f]or those non-officer individuals, . . . Fraternity Defendants’ counsel need to
establish a proper attorney-client relationship in order to claim that those individuals are
represented by counsel in this matter.”21 The court also ordered Defendants to supplement their
Rule 26(a)(1) disclosures so Plaintiff would be able to interview unrepresented non-control
group witnesses outside the presence of Fraternity Defendants’ counsel.22
Nine months later, the Plaintiff filed the motion pending before the court. The gist of
Plaintiff’s motion is that there are non-waivable conflicts of interest between and amongst
Gamma Kappa and the 24 individual defendants named in the state court action under Rule 1.7
of the Utah Rules of Professional Conduct (Rule 1.7). Disqualification is a drastic measure that
should only rarely be granted.23 The movant bears the burden of establishing facts that warrant
disqualification.24 This court has previously explained:

19

Id. at 2.
Id.
21
Id.
22
Id. at 3.
23 Procter & Gamble Co. v. Haugen, 183 F.R.D. 571, 574 (D. Utah 1998).
24
Parkinson v. Phonex Corp., 857 F. Supp. 1474, 1480 (D. Utah 1994).
20

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‘[m]otions to disqualify are governed by two sources of authority.’ First, lawyers are
bound by the local rules of the court in which they appear. Federal courts generally adopt
the rules of professional conduct of the state in which they are located. Second, because
motions to disqualify ‘are substantive motions affecting the rights of the parties, they are
decided applying standards developed under federal law.’ Therefore, such motions ‘are
governed by the ethical rules announced by the national profession and considered ‘in
light of the public interest and the litigants' rights.’25
It is undisputed the local rules of this court require “attorneys practicing before this court” to be
governed and comply with the Utah Rules of Professional Conduct as interpreted by this court.26
Plaintiff argues Gamma Kappa’s counsel should be disqualified under Rule 1.7.
Rule 1.7(a) provides that,
a lawyer shall not represent a client if the representation involves a concurrent conflict of
interest. A concurrent conflict exists if: (a)(1) [t]he representation of one client will be
directly adverse to another client; or (a)(2) [t]here is significant risk that the
representation of one or more clients will be materially limited by the lawyer’s
responsibilities to another client[.]”27
Subsection (b) of the rule also provides that:
[n]otwithstanding the existence of a concurrent conflict of interest . . . , a lawyer may
represent a client if . . . the lawyer reasonably believes that the lawyer will be able to
provide competent and diligent representation to each affected client: . . . 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 other proceeding before a
tribunal; . . . and each affected client gives informed consent, confirmed in writing.28
Plaintiff makes several arguments in support of her motion. Plaintiff argues Fraternity
Defendants’ counsel has signed up “dozens of individual former officers and members” of
Gamma Kappa as clients in order to block her access to individual witnesses and to ensure that
the 24 individual defendants “run with the herd” in defense of Gamma Kappa.29 However, there
25

Flying J Inc. v. TA Operating Corp., 2008 WL 648545, at *6 (D. Utah Mar. 10, 2008, J.
Nuffer).
26

DUCivR 83-1.1(h).
Utah R. Prof’l Conduct 1.7(a).
28
Id. at 1.7(b).
29
See ECF No. 145 at 4.
27

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is no evidence of this accusation in the record, and counsel for Gamma Kappa adamantly
disputed this in briefing and at oral argument.30 Likewise, the 24 individual defendants in the
state court action are not named defendants in this action. Although Plaintiff has amended her
complaint three times in this action, she never referenced or added any of the 24 individual
defendants in the state action to this action. Moreover, Plaintiff also acknowledged during oral
argument that she has not filed a motion to disqualify in the state action.31 Next, Plaintiff argues
that when counsel for Gamma Kappa “agreed to represent these individuals,” Gamma Kappa had
taken the position that prior to Plaintiff’s rape it had no knowledge that Relopez was a
“dangerous predator of women.”32 Plaintiff claims the circumstances have now changed because
“multiple witnesses have testified that at least 8 months before Relopez’s assault on [Plaintiff],
certain GK officers knew of credible allegations that Relopez had raped, sexually abused and
harassed several women and that sexual abuse of women by other GK members had also
occurred.”33 However, Plaintiff does not identify any of these “multiple witnesses;” she simply
cites Defendants’ Answer to one of her amended complaints where Gamma Kappa denied
certain allegations based on “insufficient information.” Based on representations made in
briefing and oral argument, it appears Plaintiff has not deposed any of the witnesses she claims
have given testimony in conflict with Relopez’s34–in fact his deposition is the only testimony

30

See ECF No. 149 at 5.
This is presumably not only because not all of the defendants have been served.
32
Id.
33
Id. at 4-5.
34
See ECF No. 149 at 10. In fact, it appears Plaintiff has not deposed a single Gamma Kappa
officer to this point. It is alleged Plaintiff noticed the deposition of a control group member Kory
Ingersoll, but then abruptly canceled it last minute, after Gamma Kappa’s counsel had already
traveled to Wyoming to prepare and defend the deposition. See id. at 11.
31

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attached to the motion.35 Finally, Plaintiff argues that because Gamma Kappa’s insurer sent a
“no coverage, no indemnity” letter to Gamma Kappa under a policy exclusion, the individual
defendants will be exposed to liability unless they “run with the herd.”36
It is undisputed the 24 individual defendants in the state action are not parties to this
action. Foremost, in this matter, Saul Ewing Arnstein & Lehr and Kipp & Christian only
represent one defendant––Gamma Kappa—none of the 24 individuals in the state action are their
“clients” in this action. In this action, the undersigned has already entered an order to address
the representation of “control group” members and non-officer individuals under Rule 4.2. Thus,
as a preliminary matter, there is no concurrent conflict in violation of Rule 1.7(a) here.
The court has held the Fraternity Defendants’ counsel may represent the individual
defendants in this action under Rule 4.2 if they meet the definition of “control group” as set forth
by the court order issued in July 2017. The court also explained that for those non-officer
individuals who do not meet the definition of “control group” under Rule 4.2, the Fraternity
Defendants’ counsel will need to establish a proper attorney-client relationship which comports
with the requirements of Rule 1.7.37 Per Rule 1.7(b), it is possible that if a concurrent conflict
arises, the individual defendants may consent to waive it in writing. At this time, given the stage

35

Also, although Plaintiff cites to the testimony of a non-party, named M.K., her testimony is not
part of the record.
36
Id. at 5. In her reply brief, for the first time, Plaintiff also asserted that one of the defendants
in the state action, Morgan (whom she dismissed with prejudice), did not receive an Upjohn
warning. See ECF No. 152 at 4 and 152-5. Plaintiff argues that since Morgan did not receive an
Upjohn warning, this establishes that Fraternity Defendants’ counsel have not informed fraternity
officers or the “control group” of potential conflicts, or advised them to retain separate counsel.
However, the Declaration of Robert Cummings does not address any of these accusations. In fat
it is unclear from the Declaration when Morgan retained Mr. Cummings, or whether Morgan
ever met, was interviewed or received any advice from the Fraternity Defendants’ counsel. See
ECF No. 152-5.
37
See ECF No. 63 at 2.
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of these proceedings, it is premature to make this sort of determination. As to the state action,
the individual defendants have several options––they may retain separate counsel, or engage
Gamma Kappa’s counsel to defend them. But at this juncture, where not all of the defendants in
the state action have been served or entered a notice of appearance, any potential conflicts there
are not ripe. Moreover, the proceedings in the state action are outside of this court’s
jurisdiction—the Plaintiff cannot conflate issues between this action and the state action she filed
to raise violations of ethical rules warranting disqualification.
Even assuming the court had found a violation of the ethical rules, “a motion to
disqualify should be viewed with ‘extreme caution . . . recognizing the possible unfair advantage
that may result.’”38 In deciding a disqualification motion,
the court must carefully consider the facts of the particular case, the nature of the
violation, and its impact on trial proceedings. Factors to be considered include (1) the
egregiousness of the violation, (2) the presence or absence of prejudice to the other side,
(3) whether and to what extent there has been a diminution of effectiveness of counsel,
(4) hardship to the other side, and (5) the stage of trial proceedings. The essential issue to
be determined ‘is whether the alleged misconduct taints the lawsuit.’39
As mentioned above, Plaintiff has not established a violation of ethical rules here, thus the first
factor weighs against disqualification. Next, Plaintiff has not established she will be prejudiced
by Gamma Kappa’s continued representation. Plaintiff asserts different interests may arise
between members of the control group and other of the 24 individual defendants, but the
assertions are conclusory and unsupported at this point. Potential “hypothetical” conflicts do not
create prejudice. The court’s view of Gamma Kappa’s counsel’s ability to represent its client in
this case has not been so undermined as to warrant disqualification. The court next considers the
hardship disqualification would impose on Gamma Kappa. It appears Gamma Kappa’s counsel

38
39

Flying J Inc., 2008 WL 648545 at *6 (internal citations omitted).
Id.
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has handled numerous fraternity cases across the country, and has represented Gamma Kappa
since the inception of this case over two years. Current counsel has handled discovery and
motion practice to date. Thus, the hardship disqualification would inflict on Gamma Kappa
would be significant. Finally, the court considers the stage of proceedings. Although no trial
date has been set, and discovery has essentially been stayed, the case was filed over two years
ago. Discovery is underway and several motions have been filed and decided. Thus, this factor
also weighs against disqualification.
As a final note, “disqualification motions must be diligently pursued to avoid waiver and
may not be used as strategic litigation tactics.”40 This case was filed in November 2016.
Plaintiff’s motion was not filed until April 2018, seventeen months later. It is notable that
Plaintiff did not file the motion until learning of the “no coverage letter” in November 2017.41 It
is also interesting Plaintiff filed her action against the 24 individual defendants in state court in
March 2018, but has not served all the defendants or taken any steps to prosecute that action
allegedly due to awaiting the decision of this motion. Thus, the court concludes Plaintiff’s delay
and tactics in filing the motion weigh against disqualification. Based on the foregoing, the court
concludes Saul Ewing Arnstein & Lehr and Kipp & Christian’s disqualification from continued
representation of Gamma Kappa in this case is not warranted.
ORDER
Plaintiff’s Motion to Disqualify [ECF No.145] is DENIED.

40
41

Flying J Inc., 2008 WL 648545, at *8 (internal citations omitted).
See ECF No. 145 at 5.
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DATED this 29th day of March 2019.

__________________________________________
Brooke C. Wells
United States Magistrate Judge

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