Gordon v. Impulse Marketing Group Inc

Filing 283

DECLARATION by Floyd E. Ivey in Opposition re 270 MOTION to Compel MOTION for Sanctions, 274 MOTION to Compel MOTION for Sanctions and in Opposition to Motion to Disqualify filed by Impulse Marketing Group Inc. (Attachments: # 1)(Ivey, Floyd)

Gordon v. Impulse Marketing Group Inc

Doc. 283

Case 2:04-cv-05125-FVS

Document 283

Filed 03/13/2006

FLOYD E. IVEY Liebler, Ivey, Connor, Berry & St. Hilaire 2 P. O. Box 6125 Kennewick, WA 99336-0125 3 5 0 9 -7 3 5 -3 5 8 1 Attorneys for Defendant 4 Impulse Marketing Group, Inc. and Third Party Plaintiff
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Klein, Zelman, Rothermel, & Dichter, L.L.P. By: Sean Moynihan, Esq.; Peter Glantz 485 Madison Avenue 7 New York, New York 10022 Telephone Number [phone] 8 Facsimile Number [phone] Attorneys for Defendant 9 Impulse Marketing Group, Inc. and Third Party Plaintiff
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ROBERT SIEGEL Attorney At Law 1325 Fourth Avenue, Suite 940 12 Seattle, WA 98101-2509 Attorney for Plaintiff
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Declaration Ivey re: Disqualification - Page 1 of 9
LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON ) ) ) Pl a i n t i f f , ) vs. ) ) IMPULSE MARKETING GROUP, ) INC., ) ) Defendant ______________________________ ) ) ) IMPULSE MARKETING GROUP, ) INC., ) Third-Party Plaintiff, ) ) vs. ) ) BONNIE GORDON, et al., ) ) Third-Party Defendants. JAMES S. GORDON, JR., No. CV-04-5125-FVS DECLARATION OF FLOYD E. IVEY RE: ISSUES OF DISQUALIFICATION; INITIAL RESPONSE WITHOUT ORAL ARGUMENT

ATTORNEY FLOYD E. IVEY'S DECLARATION RE: ISSUES OF

Attorneys at Law P.O. Box 6125 Kennewick, Washington 99336-0125 [phone]

Dockets.Justia.com

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DISQUALIFICATION I am local Counsel for Impulse Marketing Group, Inc. (hereafter Impulse) in the above entitled matter. I appeared for the Defendant on January 26, 2005. Mrs. Bonnie Gordon and Ms. Jamila Gordon have filed, on March 9, 2006, pleadings which implicitly constitute Motions to Disqualify counsel Floyd E. Ivey. Mrs. Bonnie Gordon filed, on March 9, 2006, a pleading entitled "Amended Motion to Compel and For Sanctions and Affidavit re: Discovery." Mrs. Gordon, commencing at Page 2, addresses acts of Floyd E. Ivey which she deems to violate ethical obligations of counsel. ATTACHED AS EXHIBIT A, pages 10-20. Ms. Jamila Gordon's pleading is entitled Third-Party Defendant Jamila Gordon's Motion to Compel and for Sanctions and Affidavit re: Discovery. Ms. Jamila Gordon, commencing at the bottom of page 2 recites prior representation of Mr. James Gordon, by counsel Floyd E. Ivey, and asserts that Mr. James Gordon "...discussed and corresponded about suing spammers - an apparent breach of ethics Mr. Ivey - I have copies of the 15 or more emails between Mr. Ivey and my father." ATTACHED AS EXHIBIT B, pages 21-29. PRIOR SERVICES TO MR. GORDON BY ATTORNEY FLOYD E. IVEY I was initially contacted by attorneys Mr. Sean Moynihan and or Mr. Peter Glantz, attorneys for Impulse in approximately November or December, 2004. I advised that I knew Mr. James Gordon and had assisted briefly in matters wholly unrelated to electronic mail issues. I also advised that Mr. Gordon had contacted me regarding electronic mail issues but that I had not assisted Mr. Gordon relative to electronic mail. In approximately December 2004 or January 2005 I contacted attorney Mr. Douglas McKinley, Jr., counsel for Mr. Gordon in the Impulse matter, and told him that I had been requested to be local counsel in the Impulse defense, that I had known Mr. James Gordon and had assisted him in matters unrelated to electronic
Declaration Ivey re: Disqualification - Page 2 of 9
LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

Attorneys at Law P.O. Box 6125 Kennewick, Washington 99336-0125 [phone]

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mail. I also told Mr. McKinley that Mr. Gordon had contacted me, in approximately 2003, requesting assistance regarding electronic mail. I told Mr. McKinley that I had not assisted Mr. Gordon regarding electronic mail. I asked attorney Mr. McKinley to determine and advise if there was any contention of a conflict. Mr. McKinley, within a short time, advised that Mr. Gordon did not object to my appearance on behalf of Impulse. I subsequently also appeared as defense in the matter of Gordon v. Ascentive, Eastern District of Washington, CV 05-0579-FVS and as local counsel Gordon v. Efinancials, LLC, Benton County Case 05-2-01489-7. ASSISTANCE TO MR. GORDON UNRELATED TO ELECTRONIC MAIL Matters where contact occurred between attorney Ivey and Mr. James Gordon included the following: 1. providing, in likely May 2002, a blank Confidentiality Agreement to Mr. Gordon with the name "MEDIA LOGIC" indicated. I do not find a file related to this issue but solely a computer file copy of the in blank CDA; 2. on May 3, 2002 I received an email from Mr. Gordon regarding the patenting process. I have not assisted Mr. Gordon re: patenting; 3. in an email response to Mr. Gordon on May 3, 2002, I noted his use of a Trademark and commented that this raised trademark issues. I do not find that I provided any Trademark Services to Mr. Gordon; 4. email of 7/16/02, 8/28/02, 11/2/02 and 11/19/02 regarded his business with Dancing Wolf, Inc. I do not find that any action was taken. I do not find that files were opened for these matters. My assistance to Mr. Gordon, re: these matters, was minimal. CONTACTS BY MR. GORDON REGARDING ELECTRONIC MAIL
Declaration Ivey re: Disqualification - Page 3 of 9
LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

Attorneys at Law P.O. Box 6125 Kennewick, Washington 99336-0125 [phone]

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Separately I recalled receiving email from Mr. Gordon re: his irritation with the receipt of electronic mail messages. I recalled advising Mr. Gordon that I was not interested in assisting him relative to electronic mail issues. I reviewed files and did not find any file opened relative to any electronic mail issue. I reviewed email and did not find email from or to Mr. Gordon re: the issues of electronic mail. DISQUALIFICATION SUGGESTED BY PLAINTIFF COUNSEL MCKINLEY On November 2, 2005, I advised Mr. McKinley, by email, that Mr. James Gordon was signing pleadings on behalf of Third Party Defendants, that it appeared that Mr. James Gordon was representing the Third Party Defendants, that this matter had been discussed between attorney Ivey and McKinley and that the Defendant counsel would have no direct contact with Plaintiff Mr. James Gordon. In a series of email, annexed hereto as EXHIBIT C, pages 30-34, Mr. McKinley stated that Mr. Gordon was not representing his children. I persisted indicating that Defendant required full mailing addresses for the Third Party Defendants and that it appeared that Mr. Gordon was representing the parties in Federal Court. Mr. McKinley responded, refuting representation by Mr. Gordon, and, in a second paragraph which I initially overlooked, stated that: "...You should appreciate this, as it helps move this case toward a resolution, and your suggestion that this constitutes providing legal representation" is ridiculous. However, if you really want to discuss what constitutes "providing legal representation," lets' start with the voluminous correspondence between you and Mr. Gordon, where you and he discussed the same emails and the same companies that form the basis for Mr. Gordon's complaint, prior to you entering an appearance for the other side." Mr. McKinley's comment is found in EXHIBIT C, pages 30-34, in the email
Declaration Ivey re: Disqualification - Page 4 of 9
LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

Attorneys at Law P.O. Box 6125 Kennewick, Washington 99336-0125 [phone]

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of November 2, 2005 at 3:27 p.m. At 5:51 p.m. November 2, 2005, I noted the comment and responded to Mr. McKinley stating in part: "Let's immediately address this comment". I summarized my assistance to Mr. Gordon. I noted that Mr. Gordon had sent email to me regarding electronic mail issues and that I had declined to assist. At the time of this email on November 2, 2005, I found no email or files relating to electronic mail issues. I so advised Mr. McKinley following a review of files and email over a period of approximately two hours. I reminded Mr. McKinley that the issue of conflict had been raised with Mr. McKinley at the earliest time of my involvement and that Mr. McKinley had indicated no objection to my appearance for Impulse. These comments are seen at EXHIBIT C, pages 30-34. On November 2, 2005, at 7:29 p.m. Mr. McKinley responded, indicated a difference of recollection but confirmed that "...Mr. Gordon has indicated that it is his present desire is to bring IMG to account for their actions, not to cause you problems in your law practice. Accordingly, I have not raised any further concern. Parenthetically, Mr. Gordon has shown me email traffic back and forth between Mr. Gordon and you related to initiating a spam suit against CMG, including emails from you to Mr. Gordon. Based on my renew of this correspondence and your representations below, it would appear to me that your records are incomplete." As seen in EXHIBIT C, pages 30-34, I forwarded the exchange of EXHIBIT C, pages 30-34, to my co-counsel Mr. Moynihan and Mr. Glantz. Mr. McKinley's comments were made approximately 11 months following my appearance in the Impulse Case. The activity, by November 2, 2005, in the Impulse case, the Ascentive Case and the Efinancials LLC case were as follows: 1. Impulse - one-hundred forty-nine (149) filings had been made in Impulse with attorney Ivey making all of the Impulse filings. (ATTACHED AS
Declaration Ivey re: Disqualification - Page 5 of 9
LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

Attorneys at Law P.O. Box 6125 Kennewick, Washington 99336-0125 [phone]

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EXHIBIT D, pages 35-50) 2. Ascentive - By November 3, 2005, ten (10) filings including the Ascentive Motion to Dismiss for lack of Jurisdiction. (ATTACHED AS EXHIBIT E, pages 51-54) 3. Efinancials LLC - by October 25, 2005 filings including Defendant's Motion to Change Venue. (This Motion has been granted and the case will be transferred to King County). (ATTACHED AS EXHIBIT F, pages 55-58) DISQUALIFICATION RAISED BY PLAINTIFF COUNSEL SIEGEL By letter of February 24, 2006, substituting Counsel, Mr. Robert Siegel, raised disqualification. Mr. Siegel's letter is annexed hereto as EXHIBIT G, pages 59-60. Mr. Siegel suggests a bar grievance and a Motion to Disqualify. Upon receipt of Mr. Siegel's letter I again spent some 5 hours reviewing email in archived Inbox and Sent email. There I found three email message interchanges with Mr. Gordon relative to electronic email issues. These three messages are annexed hereto as 1. EXHIBIT H, pages 61-63 -. Email September 22, 2003 from Gordon at 8:15 a.m. and to Gordon at 10:29 a.m. 2. EXHIBIT I, pages 64-65 - Email September 22, 2003 from Gordon at 3:19 p.m. transmitting Mr. Gordon's letter to the Attorney General and to Gordon from Ivey at 8:20 a.m. on September 23, 2003. 3. EXHIBIT J, pages 66-69 - Email September 25, 2003 from Gordon at 9:09 a.m. and to Gordon from Ivey at 9:38 a.m. In EXHIBIT J, pages 66-69, I advised Mr. Gordon that I was not interested in assisting in his electronic mail issues. I advised that Attorneys General would likely be pursuing such cases and encouraged him to seek other routes. I did not find any particular Defendant identified in Mr. Gordon's email. Ms. Jamila Gordon, in her "Disqualifying Remarks" states that she has 15 or more
Declaration Ivey re: Disqualification - Page 6 of 9
LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

Attorneys at Law P.O. Box 6125 Kennewick, Washington 99336-0125 [phone]

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emails between Ivey and Gordon. I find 16 emails to and from Gordon. All other than the above three concern matters unrelated to electronic mail. The issues to which remaining email relates are summarized in my email exchange with Mr. McKinley on November 2, 2005 and found here as EXHIBIT C, pages 30-34. OTHER RESEARCH PRIOR TO COMMENCING REPRESENTATION Co-counsel, Mr. Moynihan or Mr. Glantz told me that Mr. Gordon had filed cases in Benton County alleging violations of RCW 19.190 relative to electronic mail. After my discussion with Mr. McKinley and my association with co-counsel for the Defense of Impulse, I reviewed Mr. Gordon's cases at the Benton County Superior Court which I believe to be limited to the following: 1. Gordon v. Commonwealth Marketing Group, Benton County Case No. 03-2-02677-5 filed December 15, 2003; Removed to Federal Court Eastern District, Washington, 04-cv-05003-AAM; ANNEXED AS EXHIBIT K, pages 7071. 2. Gordon v. American Homeowners Association, Benton County Case No. 03-2--02647-3 filed on or about December 10, 2003; ANNEXED AS EXHIBIT L, pages 72-74. 3. Gordon v. Ayanian, Benton County Case No. 03-2-02728-3, date of filing unknown. ANNEXED AS EXHIBIT M, pages 75-82. 4. Gordon v. Theodore Hansson Company, Benton Case No. 03-2-02676-7; date of filing unknown; ANNEXED AS EXHIBIT N, pages 83-84, and 5. Gordon v. Kane, Benton Case No. 03-2-02729-1, date of filing unknown. ANNEXED AS EXHIBIT O, page 85. Mr. James Gordon appears to have initially filed pro se in each of these cases. In the matter of Commonwealth Marketing Group attorney Mr. McKinley filed, on behalf of Mr. Gordon, a First Amended Complaint on June 24, 2004. The review of these cases did not reveal Parties or issues familiar to me. I had no
Declaration Ivey re: Disqualification - Page 7 of 9
LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

Attorneys at Law P.O. Box 6125 Kennewick, Washington 99336-0125 [phone]

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reaction of familiarity with the cases and do not believe that they were ever discussed between attorney Ivey and Mr. Gordon.

SANDERS V. WOODS In the matter of Sanders v. Woods, attorney Ivey appeared for Defendant Woods. Plaintiff moved to Disqualify. I researched disqualification issues for 20 plus hours and submitted multiple memorandum opposing the Motion. The matter was argued twice before the Honorable Benton-Franklin County Superior Court Judge Craig Matheson. Judge Matheson denied the Motion to Disqualify. Thereafter the case was dismissed on Defendant's Motion for Summary Judgment. On appeal Plaintiff included the issue of Disqualification and the Dismissal was reversed with attorney Ivey and the firm disqualified. This law office and I did not realize a path of appeal with the Disqualification and additionally viewed an appeal as detrimental to the client. The case was immediately refered to Kennewick Attorney Mr. John Schultz. My Schultz was told by counsel for Mr. Sanders that Mr. Sanders had conferred with Mr. Schultz regarding the case and that he was disqualified. Mr. Schultz did not recall such consultation but proceeded to refer the case elsewhere. Attorney Mr. Schultz contact the Firm of Rettig, Osborne of Kennewick and learned that Mr. Sanders had consulted with that firm. The case was eventually handled by Kennewick attorney Mr. Fauarolt. The case was set for an early trial and counsel for Plaintiff dismissed the case at the time of trial. I understand that there was no settlement. Plaintiff Mr. Sanders had filed a complaint with the Washington State Bar Association and the WSBA case investigation had covered all materials and individuals having awareness of the case prior to Plaintiff's appeal. The WSBA was prepared to dismiss the bar complaint prior to Plaintiff's Appeal. The WSBA then suspended its considerations until the conclusion of the Appeal. Following
Declaration Ivey re: Disqualification - Page 8 of 9
LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

Attorneys at Law P.O. Box 6125 Kennewick, Washington 99336-0125 [phone]

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the decision by the Court of Appeals the WSBA Dismissed the Complaint. The Dismissal is appended to the Declaration of Ivey as EXHIBIT P, pages 86-87. RESPONDING TO MOTION TO DISQUALIFY Counsel Ivey has expended 12 hours in research and drafting of Defendant's and Third Party Plaintiff's Initial Response to Third Party Defendants' Mrs. Bonnie Gordon and Ms. Jamila's Motion to Disqualify. The rate charged for this effort is $265/hour which is a reasonable fee for effort required to address the issues asserted re: Disqualification. I certify and declare, under penalty of perjury under the laws of the State of Washington, that the foregoing is true and correct. Signed at Kennewick, Washington. DATED this 13th day of March, 2006. LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE s/ FLOYD E. IVEY Floyd E. Ivey, WSBA #6888 Attorneys for the Defendant Impulse

I hereby certify that on March 13, 2006, I electronically filed Declaration of Floyd E. Ivey regarding Issues of Disqualification with the Clerk of the Court using the CM/ECF System which will send notification of such filing to 22 Robert Siegel, Peter J. Glantz and Sean A. Moynihan. I hereby certify that I have served the foregoing to the following non-CM/ECF participants by other means: 23 Bonnie Gordon, Jonathan Gordon, James S. Gordon, III, Robert Pritchett, Emily Abbey and Jamila Gordon.
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Declaration Ivey re: Disqualification - Page 9 of 9
LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

S/ FLOYD E. IVEY FLOYD E. IVEY

Attorneys at Law P.O. Box 6125 Kennewick, Washington 99336-0125 [phone]