Gordon v. Impulse Marketing Group Inc, No. 2:2004cv05125 - Document 370 (E.D. Wash. 2006)

Court Description: ORDER Denying 235 Motion to Compel and Motion for Sanctions; Denying 298, 300, 256, and 259 Motions to Compel and Requests for Sanctions; Denying 274 and 270 Amended Motions to Compel and Requests for Sanctions. The request to disqualify Floyd Ivey by Bonnie and Jamila Gordon is Denied. Finding as Moot 325 Motion to Strike; Finding as Moot 337 Motion to Expedite; Finding as Moot 339 Motion to Strike; Finding as Moot 342 Motion to Expedite; Finding as Moot 344 Motion to Strike. Signed by Judge Fred Van Sickle. (SAP, Case Administrator)

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Gordon v. Impulse Marketing Group Inc Doc. 370 Case 2:04-cv-05125-FVS Document 370 Filed 05/15/2006 1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON 3 4 5 JAMES S. GORDON, JR., an individual residing in Benton County, Washington, 6 Plaintiff, ORDER 7 v. 8 9 10 IMPULSE MARKETING GROUP, INC.,a Nevada Corporation, Defendant. 11 12 No. CV-04-5125-FVS IMPULSE MARKETING GROUP, INC., 13 Third-Party Plaintiff, 14 v. 15 16 17 BONNIE GORDON, JAMES S. GORDON, III, JONATHAN GORDON, JAMILA GORDON, ROBERT PRITCHETT and EMILY ABBEY, 18 Third-Party Defendants. 19 20 21 22 23 24 25 26 BEFORE THE COURT is Impulse Marketing’s Motion to Compel and Motion for Sanctions (Ct. Rec. 235); Motion to Compel and Request for Sanctions brought by Third-Party Defendants James Gordon, III, (Ct. Rec. 298), Jonathan Gordon (Ct. Rec. 300), Bonnie Gordon (Ct. Rec. 256), Robert Pritchett (Ct. Rec. 259); Amended Motion to Compel and Request for Sanctions brought by Bonnie Gordon (Ct. Rec. 274), and Jamila Gordon (Ct. Rec. 270); Defendant’s Motion to Strike portions ORDER - 1 Dockets.Justia.com Case 2:04-cv-05125-FVS Document 370 Filed 05/15/2006 1 of the declarations the Third-Party Defendants submitted in support 2 of their motions. 3 (Ct. Rec. 325). Third-Party Plaintiff Impulse Marketing ("Impulse Marketing") is 4 represented by Floyd Ivey, Sean Moynihan, and Peter Glantz. Third- 5 Party Defendants are proceeding pro se. 6 Motions to Disqualify Counsel 7 Although the motions brought by Third-Party Defendants Bonnie 8 and Jamila Gordon are captioned as motions to compel, these motions 9 also request the Court disqualify Impulse Marketing’s attorney Floyd 10 Ivey. Bonnie and Jamila Gordon are the wife and daughter, 11 respectively, of the Plaintiff, James Gordon, Jr. 12 Jamila Gordon allege Mr. Ivey previously represented the Plaintiff in 13 legal matters and that this previous representation amounts to a 14 conflict of interest. 15 disqualified from representing Impulse Marketing because such 16 representation places Mr. Ivey in conflict with the interests of 17 Plaintiff. Both Bonnie and Thus, they contend Mr. Ivey should be 18 1. Standing 19 Before the Court addresses whether Mr. Ivey’s representation of 20 Impulse Marketing presents a conflict of interest, the Court must 21 address the threshold question of standing. 22 jurisdictional matter that goes to the power of a federal court to 23 decide an issue placed before it. 24 several judicially self-imposed limits on the exercise of federal 25 jurisdiction, such as the general prohibition on a litigant’s raising 26 another person’s legal rights....” ORDER - 2 Standing is a The standing doctrine “embraces Allen v. Wright, 468 U.S. 737, Case 2:04-cv-05125-FVS Document 370 Filed 05/15/2006 1 750-51, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). 2 States Supreme Court nor the Ninth Circuit has addressed the 3 particular issue of whether the standing doctrine bars a nonclient 4 party from moving to disqualify the opposing party’s counsel on the 5 grounds of a conflict of interest. 6 -- F. Supp. 2d --, 2006 WL 624454, *2 (W.D. Wash. 2006). 7 split of authority on this issue. 8 F.Supp.2d 966, 969 (C.D. Cal. 1999)). 9 Neither the United See FMC Techs., Inc. v. Edwards, There is a Id. (citing Colyer v. Smith, 50 In Colyer, the district court noted that under the majority view 10 on this issue “only a current or former client of an attorney has 11 standing to complain of that attorney’s representation of interests 12 adverse to that current or former client.” 13 969 (citing In re Yarn Processing Patent Validity Litig., 530 F.2d 14 83, 88 (5th Cir. 1976) (stating that “courts do not disqualify an 15 attorney on the grounds of conflict of interest unless the former 16 client moves for disqualification.”)). 17 acknowledged the possibility of nonclient standing where an 18 “unethical change of sides was manifest and glaring” or an ethical 19 violation was “open and obvious,” confronting the court with a “plain 20 duty to act.” 21 530 F.3d at 89). 22 litigant may bring a motion to disqualify. 23 at 970-71 (citing Kevlik v. Goldstein, 724 F.2d 844 (1st Cir. 1984)). 24 “Like the exception to the majority view, the minority view relies in 25 part on the ‘court’s well recognized power to control the conduct of 26 the attorneys practicing before it.'” FMC Techs., Inc., 2006 WL ORDER - 3 Colyer, 50 F.Supp.2d at However, the Colyer court Colyer, 50 F.Supp.2d at 969 (citing Yarn Processing, Similarly, the minority view is that a nonclient See Colyer, 50 F.Supp.2d Case 2:04-cv-05125-FVS 1 2 Document 370 Filed 05/15/2006 624454,*2 (citing Colyer, 50 F.Supp.2d at 970). In addressing the standing question, the Colyer court held that 3 a nonclient litigant “must establish a personal stake in the motion 4 to disqualify sufficient to satisfy the irreducible constitutional 5 minimum of Article III.” 6 (citing Colyer, 50 F.Supp.2d at 971). 7 noted that “where an ethical breach so infects the litigation in 8 which disqualification is sought that it impacts the moving party’s 9 interest in a just and lawful determination of her claims, she may FMC Techs., Inc., 2006 WL 624454, *3 Further, the Colyer court 10 have the constitutional standing needed to bring a motion to 11 disqualify based on a third-party conflict of interest or other 12 ethical violation.” 13 court in Colyer, the district court in FMC Technologies, Inc. adopted 14 the rule that “nonclient litigants may, under proper circumstances, 15 bring motions to disqualify counsel based on conflicts of interest.” 16 2006 WL 624454, *3. FMC Techs., Inc., 2006 WL 624454, *3. Like the 17 Although the Ninth Circuit has not decided the issue before the 18 Court, the question was presented in Kasza v. Browner, 133 F.3d 1159 19 (9th Cir. 1998). 20 courts do not disqualify an attorney on the grounds of conflict of 21 interest unless the former client moves for disqualification.” 22 Kasza, 133 F.3d at 1171 (quoting United States v. Rogers, 9 F.3d 23 1025, 1031 (2d Cir. 1983) (quoting in turn In re Yarn Processing 24 Patent Validity Litig., 530 F.2d 83, 88 (5th Cir. 1976))). 25 the Kasza court did not decide the issue because it held there was no 26 basis for disqualification even if the court assumed the plaintiff ORDER - 4 In Kasza, the court noted that as “a general rule, However, Case 2:04-cv-05125-FVS 1 2 had standing. Document 370 Filed 05/15/2006 133 F.3d at 1171. In the present case, without making a final determination on 3 whether it should adopt the majority or minority view, the Court is 4 mindful of the outcome under each view. 5 majority view, Third-Party Defendants Bonnie and Jamila Gordon do not 6 have standing to move to disqualify Mr. Ivey. 7 the minority view, Bonnie and Jamila Gordon, under the proper 8 circumstances, have standing to bring a motion to disqualify Mr. Ivey 9 based on an alleged conflict of interest between Plaintiff and Mr. If the Court adopts the If the Court adopts 10 Ivey. Under the minority view, Bonnie and Jamila Gordon must show 11 “the ethical conflict at issue here sufficiently impacts the ‘just 12 and lawful determination’ of their claims and that the conflict 13 involved is so intertwined with the current litigation that this 14 Court must consider [the] motion to disqualify[.]" 15 2006 WL 624454, *3. 16 Jamila have standing to bring this motion to disqualify, the Court 17 proceeds to review the merits of the motion. FMC Techs., Inc., Assuming, without deciding, that Bonnie and 18 2. Disqualification of Floyd Ivey 19 When faced with an allegation that an attorney’s representation 20 presents a conflict of interest, it is “the duty of the district 21 court to examine the charge, since it is that court which is 22 authorized to supervise the conduct of the members of its bar.” 23 A-Tron of Ariz. v. Union Oil Co. of Calif., 534 F.2d 1322, 1324 (9th 24 Cir. 1976). 25 do not specifically adopt the provisions of the Washington Rules of 26 Professional Conduct as ethical rules governing the practice of ORDER - 5 Gas- The Local Rules for the Eastern District of Washington Case 2:04-cv-05125-FVS Document 370 Filed 05/15/2006 1 lawyers before the courts in this district. 2 grant the Court authority to discipline any attorney who violates the 3 Washington Rules of Professional Conduct.1 4 Rules of Professional Conduct shall govern the Court's 5 disqualification analysis. 6 However, the Local Rules Thus, the Washington Here, Bonnie Gordon alleges Mr. Ivey participated in numerous 7 conversations with the Plaintiff regarding spamming, including 8 conversation related to Impulse Marketing. 9 several emails in which Mr. Ivey and the Plaintiff communicated about Further, she points to 10 the possibility of Mr. Ivey assisting the Plaintiff in filing 11 lawsuits for violations of Washington’s anti-spam statute. 12 acknowledges he provided legal services to the Plaintiff in the past, 13 but contends those services were unrelated to the pending litigation. 14 With respect to the current litigation, Mr. Ivey contends his 15 communication with the Plaintiff included an exchange of general 16 statements, but there was never any formal representation. 17 18 19 20 21 22 Mr. Ivey These allegations implicate Rule 1.9 of the Rules of Professional Conduct, which states: A lawyer who has formerly represented a client in a matter shall not thereafter: (a) Represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents in writing after consultation and a full disclosure of the material facts; or 23 24 1 25 26 See LR 83.3 (“This Court may impose discipline on any attorney practicing before this Court, ... who engages in conduct violating applicable Rules of Professional Conduct of the Washington State Bar, or who fails to comply with the rules or orders of this Court.”). ORDER - 6 Case 2:04-cv-05125-FVS 1 2 Document 370 Filed 05/15/2006 (b) Use confidences or secrets relating to the representation to the disadvantage of the former client, except as rule 1.6 would permit. 3 Wash. Rules of Prof’l Conduct R. 1.9 (2005). Under Rule 1.9(a), the 4 significant elements include (1) whether the conflict involves a 5 former client; (2) whether the subsequent representation is 6 materially adverse to the former client; and (3) whether the matters 7 are substantially related. 8 994, 998 (9th Cir. 1980). Id; see also Trone v. Smith, 621 F.2d 9 Here, it is clear Plaintiff has not consented to Mr. Ivey’s 10 representation of Impulse Marketing, but it is not clear whether 11 Plaintiff was ever a “former client” of Mr. Ivey. 12 deciding, that Plaintiff was a former client of Mr. Ivey, Bonnie and 13 Jamila Gordon must also show the matters currently at issue are 14 substantially related to the subject matter of the former 15 representation. 16 312 (Div. 3, 2004); Trone, 621 F.2d at 996 ("The relevant test for 17 disqualification is whether the former representation is 18 "substantially related" to the current representation.") 19 determination of whether the two representations are substantially 20 related turns on whether the lawyer was so involved in the former 21 representation that he can be said to have switched sides. 22 121 Wash.App. at 598, 89 P.3d 312. 23 Assuming, without Sanders v. Woods, 121 Wash.App. 593, 597-98, 89 P.3d The Sanders, Here, the facts of the case reveal that on September 22, 2003, 24 Plaintiff sent Mr. Ivey an unsolicited email in which Plaintiff 25 outlined the procedural steps he had taken to reduce the spam he had 26 been receiving. ORDER - 7 Plaintiff also explained in this email that he had Case 2:04-cv-05125-FVS Document 370 Filed 05/15/2006 1 drafted a complaint and was “seeking an attorney to ‘perfect’ [his] 2 complaint so that [he could] file it in District Court.” 3 283-2, at 52.). 4 hire an attorney to represent [him] in court.” 5 In response, Mr. Ivey said he was interested but encouraged Plaintiff 6 to contact the Attorney General. 7 forwarded Mr. Ivey a copy of an email Plaintiff previously sent to 8 the Attorney General. 9 Plaintiff explained he had received over 12,000 unsolicited (Ct. Rec. In the alternative, Plaintiff stated he “may want to Id. Id. (emphasis added). In response, Plaintiff In the email to the Attorney General, 10 commercial email (spam) in the past month, that he had successfully 11 identified the origin of some of those emails, and that he had sent 12 demand letters to the senders, citing the Washington anti-spam 13 statute. 14 of Washington “turn this proverbial lemon into lemonade–-making spam 15 a “profit center” for the State of Washington as well as other 16 organizations within the State.” 17 Plaintiff suggested to the Attorney General that the State (Ct. Rec. 283-2, at 56). On September 25, 2003, Plaintiff sent another email to Mr. Ivey. 18 (Ct. Rec. 283-2, at 57). 19 he was receiving was becoming an imposition on his business and on 20 his personal use of the internet and that he believed Washington’s 21 anti-spam statute was designed to prevent the "abuse" he was 22 experiencing. 23 for considering the issues. 24 stating that his attorney services would cost $225 per hour and that 25 he could not guarantee a solution. 26 stating there would be a "real budget needed ... to commence the ORDER - 8 Id. Plaintiff explained that the amount of spam Plaintiff closed his email by thanking Mr. Ivey Id. at 58. Mr. Ivey responded by Mr. Ivey closed his email by Case 2:04-cv-05125-FVS 1 effort. 2 forward.” 3 Document 370 Filed 05/15/2006 Please advise if you want to examine the prospect of going Id. at 57. On September 30, 2003, Plaintiff sent another email to Mr. Ivey, 4 in which Plaintiff explained that he had email documentation showing 5 the violations he alleged and had drafted two complaints. 6 295-1, at 15). 7 and requested Mr. Ivey identify the proposed costs. 8 next email is dated December 30, 2003. 9 From the context of that email, it appears Plaintiff chose to proceed (Ct. Rec. Plaintiff asked Mr. Ivey how he would like to proceed Id. Plaintiff's (Ct. Rec. 295-1, at 17). 10 pro se and filed the complaints in superior court against two 11 companies. 12 court had granted Plaintiff's request for temporary restraining 13 orders against these two companies. 14 he was still interested and in what way he envisioned assisting the 15 Plaintiff. 16 other contact between Mr. Ivey and Plaintiff. 17 In the email, Plaintiff told Mr. Ivey that a superior Id. Id. Plaintiff asked Mr. Ivey if Beyond these emails, the record does not reveal any After reviewing these emails, the Court concludes Mr. Ivey’s 18 representation of Impulse Marketing is not substantially related to 19 any previous representation of Plaintiff. 20 never offered any formal legal advice and never reviewed any legal 21 pleadings for Plaintiff. 22 examine the prospect of hiring Mr. Ivey and chose instead to proceed 23 pro se with his anti-spam case. 24 interest exists, the "underlying concern is the possibility, or the 25 appearance of the possibility, that the attorney may have received 26 confidential information during the prior representation that would ORDER - 9 The emails reveal Mr. Ivey Further, it appears Plaintiff declined to In determining whether a conflict of Case 2:04-cv-05125-FVS Document 370 Filed 05/15/2006 1 be relevant to the subsequent matter in which disqualification is 2 sought.” 3 emails produced by Mr. Ivey show no confidential information was 4 disclosed. 5 evidence providing even the appearance of the possibility that 6 confidential information was disclosed. 7 determines Mr. Ivey's representation of Impulse Marketing does not 8 present a conflict of interest. 9 Gordon's motions to disqualify Floyd Ivey are denied. Sanders, 121 Wash.App. at 599, 89 P.3d 312. Here, the Further, Bonnie and Jamila Gordon have not presented any For these reasons, the Court Therefore, Bonnie and Jamila 10 Impulse Marketing’s “Second” Motion to Compel 11 On April 18, 2006, Impulse Marketing re-noted for hearing its 12 “First Motion to Compel." The Court previously denied this motion to 13 compel, directing the parties to meet and confer in an attempt to 14 resolve their discovery problems. 15 whether the parties did in fact "meet and confer" but Impulse 16 Marketing continues to argue Plaintiff is not providing adequate 17 responses to Defendant’s discovery requests. 18 the motion to compel, arguing the alleged “deficiencies” in 19 Plaintiff’s responses are actually Impulse Marketing's "improper 20 demands.” 21 refer the parties' discovery dispute to a discovery master. 22 Therefore, Impulse Marketing's motion to compel is denied and an 23 Order referring this matter to a discovery master will be 24 forthcoming. It is not clear from the record Plaintiff objects to The Court determines it is appropriate and necessary to 25 Third-Party Defendants’ Motions to Compel and for Sanctions 26 Third-Party Defendants each allege Impulse Marketing failed to ORDER - 10 Case 2:04-cv-05125-FVS Document 370 Filed 05/15/2006 1 make the “required Rule 26 disclosures” and “provided evasive, 2 incomplete disclosure, answer, or response to discovery propounded 3 by” [sic] Third-Party Defendants. 4 compel, Third-Party Defendants provided copies of some of their 5 interrogatories and Impulse Marketing’s answers. 6 of Third-Party Defendants' interrogatories, Impulse Marketing 7 asserted the standard ambiguous, irrelevant and overbreadth 8 objections. 9 authority or provide any legal analysis in response to Impulse In support of their motions to In response to many Because Third-Party Defendants failed to cite any legal 10 Marketing’s objections to the propounded discovery requests, it is 11 difficult for the Court to analyze and resolve the discovery dispute. 12 Thus, the Court determines it is necessary to refer the parties' 13 discovery dispute to a discovery master. 14 Defendants' motions to compel are denied and an order referring this 15 matter to a discovery master will be forthcoming. 16 IT IS HEREBY ORDERED: 17 1. 18 19 Therefore, Third-Party Accordingly, Impulse Marketing’s Motion to Compel and Motion for Sanctions (Ct. Rec. 235) is DENIED. 2. Motions to Compel and Request for Sanctions brought by 20 Third-Party Defendants James Gordon, III, (Ct. Rec. 298), Jonathan 21 Gordon (Ct. Rec. 300), Bonnie Gordon (Ct. Rec. 256), Robert Pritchett 22 (Ct. Rec. 259) are DENIED. 23 3. Amended Motions to Compel and Request for Sanctions brought 24 by Bonnie Gordon (Ct. Rec. 274) and Jamila Gordon (Ct. Rec. 270) are 25 DENIED; Bonnie and Jamila Gordon's request to disqualify Floyd Ivey 26 are denied. ORDER - 11 Case 2:04-cv-05125-FVS Document 370 Filed 05/15/2006 1 4. Defendant’s Motion to Strike (Ct. Rec. 325) is MOOT. 2 5. Bonnie Gordon's Motion to Expedite (Ct. Rec. 337) is MOOT. 3 6. Bonnie Gordon's Motion to Strike (Ct. Rec. 339) is MOOT. 4 7. Jamila Gordon's Motion to Expedite (Ct. Rec. 342) is MOOT. 5 8. Jamila Gordon's Motion to Strike (Ct. Rec. 344) is MOOT. 6 IT IS SO ORDERED. The District Court Executive is hereby 7 directed to enter this Order and furnish copies to counsel AND to the 8 Third-Party Defendants who are proceeding pro se. 9 DATED this 15th day of May, 2006. s/ Fred Van Sickle Fred Van Sickle United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER - 12

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