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Ross v. Blitzer


December 22, 2009


The opinion of the court was delivered by: Harold Baer, Jr., United States District Judge


Plaintiff Stuart R. Ross ("Ross" or "Plaintiff") filed his Complaint in this action on October 13, 2009 alleging intentional infliction of emotional distress against Defendant David Blitzer ("Blitzer" or "Defendant") and against certain John Doe Defendants for "aiding and abetting" Blitzer in the commission of his alleged wrongful acts. Blitzer has moved to dismiss the Complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Ross did not submit any substantive response to the motion to dismiss; rather, he filed a cross-motion to disqualify Blitzer's counsel and to strike the motion to dismiss. Because I have received no substantive response to the motion to dismiss, I will reserve decision on that motion for the time being, and this opinion will address only the cross-motion to disqualify counsel. For the reasons set forth below, Plaintiff's cross-motion is denied. As set forth this case shall be placed on my suspense docket for forty-five (45) days from the date of this order, with the opportunity to seek an additional fifteen (15) days of suspension if needed and if reasons are provided.


In approximately 2008, after having struggled for several years with a serious illness, Ross began to seek financial support from Blitzer, his son-in-law. During the several years prior to 2008, Ross had littlecontact with Blitzer or his wife (Ross's daughter) and had not been permitted any contact with their children (Ross's grandchildren). Ross alleges that in mid-2008, Blitzer committed to loan Ross$100,000 to help Ross finance and finalize a business venture. By July 2008, Blitzer had already provided $50,000, and Ross contacted Blitzer to collect the balance. Blitzer, however, allegedly reneged on his commitment to provide the balance. Ross alleges that "Blitzer's refusal upset [him]" and that he explained to Blitzer that he desperately needed the money, but Blitzer did not budge. During the same timeframe, Ross sought Blitzer's permission to visit with his grandchildren, but Blitzer denied these requests as well.

In July and August 2008, Ross contacted Blitzer by telephone to urge him to reconsider his positions on both the financial support and visitation. Ross admits that he is an alcoholic and that he was inebriated during these telephone calls, but he denies that he ever made any threat of physical harm to Blitzer or his family. Nevertheless, Blitzer held fast to his refusal to provide more money or visitation to Ross. Ross alleges that Blitzer was angered by Ross's repeated pleas, and decided to "take advantage of Ross at the moment when Ross was at this very low level." Ross alleges that Blitzer did so by contacting the District Attorney's Office of New York County to bring charges for extortion based on Ross's allegedly harassing telephone calls.

Blitzer, through his attorney, also arranged an in-person meeting with Ross purportedly to discuss a resolution of their issues. Ross alleges that, through his attorneys, Blitzer advised Ross that he was willing to make a monetary payment, but in exchange Ross would be required to relinquish any rights to visit his grandchildren and to waive any claims to receive any further loans or advances from Blitzer. However, Ross alleges that settlement of their issues was not Blitzer's true intention in calling the meeting; rather, Ross alleges that Blitzer's true intent was to "entrap" Ross. The meeting took place in August 2008 and was attended by Ross and Blitzer and both parties' attorneys, including Roger Stavis on behalf of Blitzer. Once again, Blitzer allegedly offered to pay Ross a sum of money in exchange for his abandonment of his requests for further money or visitation with the children. Unbeknownst to Ross, the meeting was videotaped and a copy of the tape was provided to the District Attorney's Office. Subsequently, the District Attorney obtained an indictment from the grand jury against Ross for extortion.


Ross's instant motion to disqualify Roger Stavis and his law firm, Gallet Dreyer & Berkey LLP, is premised on his contention that Stavis is the key non-party witness who actively participated and facilitated Blitzer's alleged misconduct in this case. Specifically, Ross contends that it was Stavis who first initiated contact with respect to settlement of the dispute between Ross and Blitzer and Stavis allegedly worked with Blitzer and encouragedRoss to request money during the August 2008 meeting and then portrayed that request to the District Attorney as attempted extortion. Indeed, Ross alleges that it was Stavis, not Blitzer, who was in contact with the District Attorney during the relevant timeframe.

A. Legal Standard

Rule 3.7 of the New York Rules of Professional Conduct -- former Disciplinary Rule 5-102 ("DR 5-102") -- pertains to situations in which lawyers may be called as witnesses, commonly referred to as the "witness-advocate rule."*fn2 Under this rule "[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact," except in certain enumerated circumstances. N.Y. C.R.R. § 1200.29. New York courts have interpreted this provision to require disqualification "only when it is likely that the testimony to be given by the witness is necessary." Gabayzadeh, 639 F. Supp. 2d at 303 (quoting S & S Hotel Ventures Ltd. P'ship v. 777 S.H. Corp., 69 N.Y.2d 437, 445-46 (1987)).

As the Second Circuit recently found, "Rule 3.7 lends itself to opportunistic abuse." Murray v. Metropolitan Life Ins. Co., 583 F.3d 173, 178 (2d Cir. 2009). The court further found that "[b]ecause courts must guard against the tactical use of motions to disqualify counsel, they are subject to fairly strict scrutiny, particularly motions under the witness-advocate rule." Id. (quoting Lamborn v. Dittmer, 873 F.2d 522, 531 (2d Cir. 1989)) (internal quotation marks omitted). Thus, to succeed on a motion to disqualify based on the witness-advocate rule, Ross must show "specifically how and as to what issues in the case prejudice may occur and that the likelihood of prejudice occurring is substantial." Lamborn, 873 F.2d at 531. "Prejudice" in this context means "testimony that is sufficiently adverse to the factual assertions or account of events offered on behalf of the client, such that the bar or the client might have an interest in the lawyer's independence in discrediting that testimony." Murray, 583 F.3d at 178.*fn3 Thus, the Second Circuit has held that disqualification under Rule 3.7(b), which applies to Ross's motion, is appropriate "only if the movant proves by clear and convincing evidence that [A] the witness will provide testimony prejudicial to the client, and [B] the integrity of the judicial system will suffer as a result." Id. at 178-79; see also Gormin v. Hubregsen, No. 08 Civ. 7674 (PGG), 2009 WL 508269, at *2 (S.D.N.Y. Feb. 27, 2009) ("The party seeking disqualification must bear a heavy burden of proof in order to prevail and mere speculation will not suffice.").

Thus, it is clear that "the disqualification of an attorney upon the motion of an adversary is a serious sanction that ought not be imposed lightly." Sea Tow Int'l, Inc. v. Pontin, No. CV-06-3461, 2007 WL 4180679, at *1 (E.D.N.Y. Nov. 19, 2007); see also Capponi, 2009 U.S. Dist. LEXIS 83774 at *29 ("Because disqualification impinges on a party's right to select counsel of its choosing, it is considered a drastic remedy."). Indeed, it is well-established that "[m]otions to disqualify opposing counsel are viewed with disfavor in this Circuit because they are often interposed for tactical reasons and result in unnecessary delay." Gabayzadeh, 639 F. Supp. 2d at 300(quoting Bennett Silvershein Assoc. v. Furman, 776 F. Supp. 800, 802 (S.D.N.Y. 1991)); see also Amusement Indus., Inc. v. Stern, No. 07 Civ. 11586 (LAK) (GWG), 2009 WL 3069740, at *1 (S.D.N.Y. Sept. 28, 2009); A.V. by Versace, Inc. v. Gianni Versace, S.p.A., 160 F. Supp. 2d 657, 662-63 (S.D.N.Y. 2001); cf. Armstrong v. McAlpin, 625 F.2d 433, 444 (2d Cir. 1980) (instructing district courts to take a "restrained approach" when deciding motions to disqualify counsel). Thus, in deciding a motion to disqualify counsel, the Court must "balance a client's right freely to choose his counsel against the need to maintain the highest standards of the profession." Hempstead Video, Inc. v. Incorporated Vill. of Valley Stream, 409 F.3d 127, 132 (2d Cir. 2005).

B. Disqualification is Unwarranted at this Stage

In making the instant motion to disqualify Stavis and his law firm, Ross conclusorily states that Stavis's testimony will be adverse to Blitzer because it will show that Blitzer "carefully plotted with Stavis and acted with intent to cause emotional and mental harm to the Plaintiff." However, at least at this very preliminary stage of the litigation, there is nothing in the record before the Court to suggest that any potential testimony that Stavis might give wouldn't be precisely aligned with Blitzer's interests.*fn4 Moreover, although Ross contends that "if it appears that an attorney may be a witness, the time to decline representation is at the start of the suit," the standard set forth above makes it clear that the witness-advocate rule is concerned with preventing potential taint at trial. Thus, where there has been only limited discovery and it is not yet clear the extent to which an attorney's testimony might be necessary or prejudicial, numerous courts have found that motions to disqualify counsel are premature. E.g., Gabayzadeh, 639 F. Supp. 2d at 304 (denying motion to disqualify where determination "would be merely speculative at this point" in litigation); Gormin, 2009 WL 508269 at *3 ("The reality is that at this stage of the litigation, it is impossible to determine how significant [defendants' counsel] might be as a witness or whether he is likely even to be called as a witness; whether his testimony would likely hurt or help his client; or whether his testimony would or would not be cumulative of other witnesses. Based on such a record, courts in this District commonly deny disqualification motions.") (collecting cases); Lyman v. City of Albany, No. 06-CV-1109 (LEK/DRH), 2007 WL 496454, at *4 (N.D.N.Y. Feb. 12, 2007) ("[A]t this stage, the scope of Lyman's claims which will remain at issue for trial has not been resolved nor have the factual issues which will be in dispute at [trial]. Absent such determinations, it would require undue speculation to determine whether issues will remain for trial as to which [counsel] ought to testify.").

Here, where the Court has only this week held a Rule 16 conference, but has entered no pretrial scheduling order, and where there has been no discovery as of yet, there is no record on which to base a determination that disqualification is proper.*fn5 See, e.g., A.V. by Versace, 160 F. Supp. 2d at 664 ("[W]hen, as here, it is not clear, prior to the completion of discovery, whether the moving party sustained its burden of showing that the attorney would be called as a witness, the motion to disqualify is premature and should be denied.") (quoting Abdullah v. Sheridan Sq. Press, Inc., 93 Civ. 2515 (HB), 1995 U.S. Dist. LEXIS 9679, at *3 (S.D.N.Y. July 12, 1995)); Papyrus Tech. Corp. v. New York Stock Exch., 325 F. Supp. 2d 270, 276 (S.D.N.Y. 2004) (noting that a court "must consider the factual record underlying such a motion in detail to determine whether the party seeking disqualification has sustained the high standard of proof necessary to disqualify opposing counsel"). In other words, it is too early at this juncture to make a determination with any certainty that Ross has borne his high burden to show that Stavis's testimony will be necessary at trial or that the content of that testimony is likely to be prejudicial to Blitzer. Indeed, this case might never proceed to trial for any number of reasons, not the least of which is Blitzer's pending motion to dismiss.*fn6 Accordingly, Ross's motion to disqualify Blitzer's counsel must be denied at this stage in the proceedings, without prejudice to potentially being brought against at a more appropriate time, should the case not be dismissed.*fn7


For the foregoing reasons, Plaintiff's motion to disqualify Blitzer's counsel is denied without prejudice. Based on the representations by Plaintiff's counsel at the Rule 16 conference regarding Plaintiff's condition, this action will be placed on the suspense docket for a period of forty-five (45) days from the date hereof. Plaintiff may apply to extend the suspension of the matter for an additional fifteen (15) days for good case shown. In any event, if neither party advises the Court before that time that Defendant is ready and able to proceed with this action, it will be dismissed for failure to prosecute. If, however, Plaintiff writes the Court to advise that he is prepared to proceed, then his substantive response to the pending motion to dismiss shall be served and filed not more than twenty (20) days after any such communication, and Defendant's reply, if any, shall be submitted five (5) business days after service of Plaintiff's opposition.


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