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Almonte v. City of Long Beach

March 27, 2007

MARIA ALMONTE, ET AL., PLAINTIFFS,
v.
CITY OF LONG BEACH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: James Orenstein, Magistrate Judge

ORDER

Plaintiffs Maria Almonte, Mary Cammarato ("Cammarato"), Barbara Davis, and Peter Snow -- former employees of the City of Long Beach ("City") -- charge the City and Mona Goodman, James Hennessy ("Hennessy"), and Thomas Sofield, Jr. individually and in their official capacities, and Glen Spiritis in his official capacity (collectively, the "Individual Defendants") with unlawfully terminating their employment or eliminating their positions because of their constitutionally protected political affiliations and activities. Docket Entry ("DE") 62. The instant dispute relates not to the merits of the plaintiffs' claims, but rather the identity of the attorneys litigating them. Specifically, some six months after the defendants substituted their counsel, DE 29, and following my inquiry into the issue sua sponte, the plaintiffs moved to disqualify attorneys Ronald Rosenberg and John Ciulla, and the law firm of Rosenberg, Calica & Birney ("RCB") from representing any of the defendants in this litigation. DE 83. After the United States Court of Appeals for the Second Circuit resolved an interlocutory appeal on an unrelated aspect of this case,DE 99, the Honorable Joanna Seybert, United States District Judge, referred the disqualification motion to me for decision on March 23, 2007. DE 100. For the following reasons, I now deny the motion.

I. Background

A. Facts Underlying This Action

In June and July 2004, the plaintiffs learned that their employment with the City had been terminated. Each was an active and well-known member of the local Democratic Party, and two had campaigned intensively for Democratic candidates in the 2003 elections. Three of the City Council members elected in 2003 were Republicans, as was the newly-elected City Manager. According to the allegations of the Amended Complaint, these four Republicans -- the Individual Defendants -- met secretly at the home of the City's Corporation Counsel to discuss firing the plaintiffs because of the latter's affiliations with the Democratic Party. DE 62. Shortly thereafter, the City Council adopted Resolution No. 121/04 and Resolution No. 181/04, which effectively terminated the funding lines for each plaintiff's employment. Id.

B. RCB's Successive Representations

RCB has represented the City on numerous occasions; relevant here are those on which RCB represented the City and certain individuals named as its co-defendants. In 2002, Hennessy (one of the Individual Defendants in this case) filed suit against the City and certain individual defendants. Hennessy v. City of Long Beach, et al., CV 02-4504 (ADS) (MLO). Hennessy alleged that Eugene Cammarato (the husband of plaintiff Cammarato in this case), who was then the City's Director of Operations, had subjected him to adverse employment actions after Hennessy decided to become a Republican candidate for City Council. In the Hennessy case, RCB represented the City and Mr. Cammarato, and was therefore adverse to Hennessy in his capacity as a plaintiff. The repercussions of that representation in this action are plain: RCB now defends its former adversary Hennessy against claims lodged by the wife of its former client Eugene Cammarato. Further complicating the ethical landscape, when Hennessy sued the City he was represented by an attorney named Charles Theofan ("Theofan"). Theofan went on to become the City's Corporation Counsel, in which capacity he served at the time the instant litigation began, and shortly thereafter became the City Manager. Theofan appears to be heavily implicated in the facts giving rise to the instant litigation; one of the key factual allegations in the Complaint in this case is that the decision to eliminate the plaintiffs' positions was made at clandestine meetings in Mr. Theofan's home -- meetings attended by an official of the political party with which the Individual Defendants were aligned, but from which City Council members of the opposing party were excluded.

Another lawsuit of relevance to the instant motion is Hodge v. City of Long Beach, et al., CV 02-5851 (TCP) (JO), in which RCB again represented the City. The plaintiff in that action, James Hodge, claimed that Eugene Cammarato, while still the City's Director of Operations, had subjected him to adverse employment actions because the two supported different political candidates in the primary election for Nassau County Executive. In that case, unlike this one, Theofan (as the City's Corporation Counsel) decided to engage separate counsel for the individual City officials who were named in that case. By doing so, Theofan ensured that the City, represented by RCB, would be in a position to try to blame the individual officials -- who did not belong to the same party as himself, and who would thereafter not be represented by RCB -- for any conduct giving rise to liability. In contrast, in this case -- where the individual officials who remain as defendants are all of the same political party as Theofan -- the City appears to be content to abandon any reliance upon a theory that its employees acted beyond the scope of their official duties: having decided that RCB will jointly represent the Individual Defendants as well as the City, the City lacks an attorney who can ethically pursue such a defense theory.

C. Procedural History

On January 6, 2006, the plaintiffs moved to disqualify RCB from representing any of the defendants in this action, citing serious conflicts of interest arising from its concurrent representation of the City and the Individual Defendants and from its prior representation of the City and others. DE 83. Shortly thereafter, all defendants moved to dismiss the complaint on grounds that legislative immunity protected all actions taken by the Individual Defendants in connection with the budgetary resolutions that eliminated the funding for the plaintiffs' employment. DE 73. Judge Seybert granted that motion in part and denied it in part, DE 88, and appeal was taken. DE 92. On February 14, 2007, the United States Court of Appeals for the Second Circuit held that legislative immunity protects the Individual Defendants from liability for all discussions and agreements on the subject preceding the vote in addition to the vote itself. Almonte v. City of Long Beach, 478 F.3d 100 (2d Cir. 2007). Further, the Second Circuit explained that legislative immunity does not protect the Individual Defendants from liability for any administrative firing or conspiracy to administratively fire prior to the vote. Id. Following that decision, Judge Seybert referred the disqualification motion to me for decision. DE 100.

II. Discussion

A. Legal Standards for Disqualification

Attorneys who practice in the Eastern District of New York must conform their conduct to the strictures of the New York Lawyer's Code of Professional Responsibility (the "New York Code"). See Loc. Civ. R. 1.3; id.1.5(b)(5); see also In re Snyder, 472 U.S. 634, 645 n.6 ("The federal court is entitled to rely on the attorney's knowledge of the state code of professional conduct ...."). Federal courts look to the New York Code and the American Bar Association's Model Code of Professional Responsibility (the "ABA Code") for guidance, but the standard for disqualification is a matter of federal law. Hempstead Video, Inc. v. Incorporated Vill. of Valley Stream, 409 F.3d 127, 132 (2d Cir. 2005).

The court's discretionary authority to disqualify a civil litigant's counsel stems from its responsibility to supervise members of the bar and its "inherent power to preserve the integrity of the adversary process." Hempstead Video, Inc., 409 F.3d at 132 (citations and internal quotation omitted). As a general matter doubts are resolved in favor of disqualification, but the court's analysis of such motions is exacting; disqualification is a drastic sanction. Shabbir v. Pakistan Int'l Airlines, 443 F. Supp.2d 299, 304 (E.D.N.Y. 2005). The moving party thus bears the "heavy burden" of demonstrating that disqualification is necessary. Evans v. Artek Sys. Corp., 715 F.2d 788 (2d Cir. 1983). Specifically, the moving party must show that allowing the challenged representation to continue would present a real risk of trial taint. Shabbir, 443 F. Supp.2d at 305 (citations omitted). Such a risk arises when an attorney is in a position to ...


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