Gordon v. Impulse Marketing Group Inc

Filing 328

MEMORANDUM in Opposition re 270 MOTION to Compel MOTION for Sanctions, 277 MOTION to Expedite, 259 MOTION to Compel MOTION for Sanctions, 300 MOTION to Compel MOTION for Sanctions, 274 MOTION to Compel MOTION for Sanctions, 272 MOTION to Expedite, 256 MOTION to Compel MOTION for Sanctions, 298 MOTION to Compel MOTION for Sanctions, 261 MOTION to Expedite Response re: Motion to Disqualify filed by Impulse Marketing Group Inc. (Attachments: # 1 Exhibit to Response to Motion to Disqualify)(Ivey, Floyd)

Gordon v. Impulse Marketing Group Inc

Doc. 328

Case 2:04-cv-05125-FVS

Document 328

Filed 04/02/2006

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
1 5 6

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
10 11

ROBERT SIEGEL Attorney At Law 1325 Fourth Avenue, Suite 940 12 Seattle, WA 98101-2509 Attorney for Plaintiff
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Defendant's Memorandum in Response to Motion for Disqualification - Page 1 of 7
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 MEMORANDUM: DEFENDANT AND THIRD PARTY PLAINTIFF'S RESPONSE TO THIRD PARTY DEFENDANT'S ASSERTIONS RE: DISQUALIFICATION WITHOUT ORAL ARGUMENT

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

Dockets.Justia.com

Case 2:04-cv-05125-FVS

Document 328

Filed 04/02/2006

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

I. INTRODUCTION

Ms. Jamila Gordon and Mrs. Bonnie Gordon make assertions in their Declarations respectively of March 17, 2006 and March 20, 2006 regarding the issue of disqualification of attorney Floyd E. Ivey from this matter. The assertions by Mrs. Bonnie Gordon appear to duplicate or overlap those found in the Declaration of Ms. Jamila Gordon. Attorney Ivey appeared for defendants in the present matter in January, 2005 and thereafter in the Eastern District Court matter of Gordon v. Ascentive CV-05-5079-FVS and the Benton County case of Gordon v. Efinancials LLC. Argument and law have been previously provided by Defendant and Third Party Plaintiff specifically directed to the issue of disqualification. The subsequent assertions by Ms. Jamila Gordon and Mrs. Bonnie Gordon are now a d d re s s e d . II. PARTIES SELECTING COUNSEL OF CHOICE Ms. Jamila Gordon's Declaration, page 1/paragraph 2 lines 5-page 2/line 3, found as Exhibit 1, pages 8 to 28, to this Memorandum, have been objected to in Defendant and Third Party Plaintiff's separate Motion to Strike Portions of Declarations and Defendant has asked the Court to disregard the specific portions of the Declaration of Ms. Jamila Gordon. These portions of Ms. Gordon's Declaration of March 20, 2006 relate to the issue of a party having counsel of its choice. Ms. Gordon argues that Ivey is not the counsel of choice but is a subcontractor to primary counsel. Ms. Gordon cites no authority for the position t ak en . Ms. Godson does not acknowledge Mr. Ivey's representation of the defense in the cases of Gordon v. Ascentive and Gordon v. Efinancials, the role therein
Defendant's Memorandum in Response to Motion for Disqualification - Page 2 of 7
LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

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

Case 2:04-cv-05125-FVS

Document 328

Filed 04/02/2006

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

played by attorney Ivey and the absence of issues raised by Plaintiff Gordon regarding Conflict. The arguments fail. There was no conflict in representation. If there is a question of prior representation the Plaintiff has waived the issue by the failure to timely bring the matter of disqualification to the attention of the court. The Motion to Disqualify should be denied.

III. PRIVILEGED COMMUNICATIONS ALLEGED Ms. Jamila Gordon's Declaration, page 5, paragraph 9 alleges an attorney client relationship between Mr. Gordon and attorney Ivey by her discussions with Plaintiff Mr. Gordon. Ms. Gordon's Declaration has been objected to with the request that the testimony be disregarded as hearsay, conclusory and argumentative. However, the court is referred to The Declaration of Floyd E. Ivey, regarding the issue of disqualification, and Exhibit C which is the email between attorney Ivey and attorney McKinley of November 2, 2005, some eleven months after an initial discussion of any contention by Mr. Gordon of a conflict and with the conclusion that there would be no further contention of conflict raised. The court is also again referred to Exhibit I to the Declaration of Floyd E. Ivey which comprises the email from Mr. Gordon to then Attorney General Gregoire, State Representatives Shirley Hankins and Jerome Delvin and State Senator Patricia Hale wherein Mr. Gordon addresses his concern and legislative proposals regarding unwanted electronic mail messages. Mr. Gordon's communications negate arguments that Mr. Gordon retained confidentiality regarding his efforts relative to electronic mail messages. Additionally, regarding confidentiality, Ms. Jamila Gordon's Declaration at paragraph 9 and paragraph 11, references her Exhibit 7 and knowledge by attorney
Defendant's Memorandum in Response to Motion for Disqualification - Page 3 of 7
LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

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

Case 2:04-cv-05125-FVS

Document 328

Filed 04/02/2006

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Mr. Ivey as evidence that attorney Ivey demonstrated awareness of confidential information. Ms. Gordon asserts that "...The actual mention of CMG was via hyperlink to a web site created by my father, which contained...I believe the web site has been taken down. on the surface, it appears that Mr. Ivey has direct intimate knowledge of both sides in the instant conflict..." However, the web sites referenced at Exhibit 7 have not been taken down. Exhibit 2, pages 29 to 30, to this Memorandum illustrates the extensive presence of Mr. James Gordon's litigation efforts including reference to American Homeowners Assn, Commonwealth Marketing Group and Theodore Hansson Co. Reference, in Exhibit 2, pages 29 to 30, is made to ORDER DENYING DEFENDANT'S MOTION TO DISMISS relative to Mr. Gordon's December 2001 filing of Gordon v. Commonwealth. Exhibit 3, pages 31 to 37, to this Memorandum demonstrates the results of a search of Ms. Gordon's reference to the Exhibit 7 web site found at www.gordonworks.com/spam where the Complaint of Gordon v. Kraft CV 055002-EFS is found. Exhibit 4, pages 38 to 56, is the Exhibit 7 web site where Gordon v. Commonwealth Complaint is found at www.gordonworks.com/spam/commonwealthmarketinggroup.htm. Additionally, Defendant Impulse's attorneys Mr. Sean Moynihan and Mr. Peter Glantz were long before aware of the matter of Gordon v. Commonwealth as evidenced by the recitation to the case in the Impulse Motion to Dismiss brought in the current matter. Exhibit 5, pages 57 to 60, is a January 4, 2004 reference to Mr. Gordon's litigation in Commonwealth. Exhibit 6, pages 61 to 64, is a reference dated September 24, 2004 of Mr. Gordon's formation of "Informal Coalition of Private Anti-spam Litigants
Defendant's Memorandum in Response to Motion for Disqualification - Page 4 of 7
LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

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

Case 2:04-cv-05125-FVS

Document 328

Filed 04/02/2006

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(ICPAL). Mr. Gordon's formation of ICPAL is seen at the second page of Exhibit 6, pages 61 to 64. Exhibit 7, pages 65 to 67, refers to Mr. Gordon's filing of the Commonwealth case. Page 2 of Exhibit 7 indicates that Mr. Gordon awaited news of a settlement, on September 12, 2006, in the Commonwealth case. Exhibit 8, pages 68-71, indicates the approaches taken by Mr. Gordon in analyzing electronic mail messages to determine if statutory violations had o c c u rre d . IV. CONCLUSION-DISQUALIFICATION FAILS AND SANCTIONS ARE SOUGHT It is asserted that there was no representation by attorney Ivey of Mr. Gordon relative to Mr. Gordon's Anti-spam efforts. The issue was addressed prior to attorney Ivey engaging to represent Defendants relative to Mr. Gordon's efforts. The first reference to a possible conflict was made November 2, 2005 in email from attorney Mr. McKinley. The reference was immediately challenged by attorney Ivey and Mr. McKinley advised that the issue would be dropped. Attorney Ivey, at the time of Mr. McKinley's comment, was representing Defendants in Impulse Marketing Group, Ascentive LLC and Efinancials LLC. and had then represented Impulse for some eleven months. Motions challenging jurisdiction and venue were brought by attorney Ivey in Ascentive LLC and Efinancials LLC. Venue was changed, in Efinancials LLC, from Benton County to King County. Further, pursuant to Rule 11(c)(1)(B), Defendant and Third Party Plaintiff Impulse respectfully requests that this Court impose sanctions upon Third Party Defendants on the ground that Third Party Defendants' raising of the issue of Disqualification was frivolous and would have been understood to be frivolous
Defendant's Memorandum in Response to Motion for Disqualification - Page 5 of 7
LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

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

Case 2:04-cv-05125-FVS

Document 328

Filed 04/02/2006

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

upon a reasonable investigation by Third Party Defendants. Defendant has given notice to the Third Party Defendants, by correspondence and by this reference, that sanctions will be sought and that the issue of disqualification should be withdrawn. Impulse requests that this Court impose sanctions upon Third Party Defendants in an amount equal to the time and money expended by counsel for Impulse in researching, preparing and filing responses to the issue of Disqualification. Attorney Ivey has previously addressed the time for research and drafting associated with the initial response. This reply to the Declarations of Mrs. Bonnie Gordon and Ms. Jamila Gordon has required an additional five hours of research and drafting by attorney Ivey. Further, the Initial Response by Defendant and Third Party Plaintiff constituted notice under Fed. R. Civ. P. 11(c)(1)(A) more than 21 days prior to the date of the scheduled hearing on April 10, 2006. Sanctions should be imposed. Cook v. Peter Kiewit Sons, Co., 775 F.2d 1030, 1037 n. 13 (9th Cir.1985); Business Guides v. Chromatic Communications, Enterprises, 892 F.2d 802, 811 (9th Cir.1989), aff'd 111 S.Ct. 922 (1991).

DATED this 2nd day of April, 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 April 2, 2006, I electronically filed DEFENDANT
Defendant's Memorandum in Response to Motion for Disqualification - Page 6 of 7
LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

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

Case 2:04-cv-05125-FVS

Document 328

Filed 04/02/2006

AND THIRD PARTY PLAINTIFF'S RESPONSE TO THIRD PARTY DEFENDANT'S ASSERTIONS RE: DISQUALIFICATION with the Clerk of the 2 Court using the CM/ECF System which will send notification of such filing to Robert Siegel, Peter J. Glantz and Sean A. Moynihan. I hereby certify that I have 3 served the foregoing to the following non-CM/ECF participants by other means: Bonnie Gordon, Jonathan Gordon, James S. Gordon, III, Robert Pritchett, Emily 4 Abbey and Jamila Gordon.
1 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Defendant's Memorandum in Response to Motion for Disqualification - Page 7 of 7
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]