City of Kalamazoo v. Michigan Disposal Serv. Corp.

• Decision Date: 20 December 2000
• Docket Number: No. 1:99 CV 338.,1:99 CV 338.
• Citation: 125 F.Supp.2d 219
• Parties: CITY OF KALAMAZOO, et al., Plaintiffs, v. MICHIGAN DISPOSAL SERVICE CORPORATION, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

125 F.Supp.2d 219

CITY OF KALAMAZOO, et al., Plaintiffs, v. MICHIGAN DISPOSAL SERVICE CORPORATION, et al., Defendants.

No. 1:99 CV 338.

United States District Court, W.D. Michigan, Southern Division.

December 20, 2000.

John A. Ferroli, Dykema Gossett, PLLC, Grand Rapids, MI, Robert H. Cinabro, Office of the City Attorney, Kalamazoo, MI, for Kalamazoo, City of.

John A. Ferroli, Dykema Gossett, PLLC, Grand Rapids, MI, Scott S. Brinkmeyer, Mika, Meyers, Beckett & Jones, PLC, Grand Rapids, MI, for Cork Street Landfill Group.

Gary A. Trepod, Hubbard, Fox, Thomas, White, et al, Lansing, MI, for Michigan Disposal Service Corporation, MDS Liquidating Trust, Dell View Corporation, James J. Dekruyter.

Mark F. Miller, DeNardis, McCandless & Muller, PC, Detroit, MI, for Parker Hannifin Corporation.

Todd R. Dickinson, Tolley, Vanden-Bosch, Walton, Korolewicz & Brengle, P.C., Grand Rapids, MI, for Brunswick Corporation.

Janice N. Pavel, Zevnik, Horton, Guibord, et al., Chicago, IL, for Pneumo Abex Corporation, Pneumo Abex Corporation.

OPINION

SCOVILLE, United States Magistrate Judge.

Introduction

Presently before the court is a motion by defendant Brunswick Corporation to disqualify plaintiff's counsel, Dykema Gossett. The asserted ground for disqualification is Dykema Gossett's involvement in litigation previously pending before this court, to which Brunswick was a party, a case which Brunswick asserts is substantially related to the present case. For the reasons set forth below, the court finds that Dykema Gossett, as "common counsel" for the Joint Defense Group in the previous litigation, had a direct attorney-client relationship with the Group members, including Brunswick, and that the firm's representation of plaintiffs in the present case creates a serious conflict of interest. The motion to disqualify will therefore be granted.

This is a civil action for contribution under Section 113 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9613, response cost recovery under Section 20126 of Part 201 of the Natural Resources and Environmental Protection Act ("Part 201"), MICHCOMP.LAWS § 324.20126, for an equitable accounting of the MDS Liquidating Trust, and breach of contract. (Third Amended Complaint, ¶ 1, docket # 37). The lawsuit stems from orders of the United States Environmental Protection Agency ("EPA") ordering remediation of the Cork Street Landfill ("Cork Street"), located in Kalamazoo, Michigan.

The named plaintiffs in this lawsuit are the City of Kalamazoo and an unincorporated association known as the "Cork Street Landfill Group." The members of this association are identified in the complaint as Pharmacia & Upjohn Company, the County of Kalamazoo, and the City of Kalamazoo. (Third Amended Complaint, ¶ 6). The named plaintiffs are represented in this lawsuit by the law firm of Dykema Gossett PLLC ("Dykema Gossett"). The City of Kalamazoo is also represented by Kalamazoo City Attorney Robert H. Cinabro. The Third Amended Complaint identifies attorney Scott Brinkmeyer as Pharmacia & Upjohn's attorney as a member of the Cork Street Landfill Group. Kalamazoo County has not filed an appearance in this lawsuit. No attorney is identified by the complaint as separately representing Kalamazoo County as a member of the Cork Street Landfill Group. Plaintiff's Third Amended Complaint identified ten defendants: Michigan Disposal Service Corporation ("MDS"); MDS Liquidating Trust; Dell View Development Company, Inc.; James J. Dekruyter; Meijer, Inc.; Brunswick Corporation ("Brunswick"); Pneumo Abex Corporation; Schawk, Inc.; Fabri-Kal Corporation; and Taplin Environmental Contracting Corporation. The last six defendants, including Brunswick, were added to the case in May of 2000.

After the addition of defendants, Judge David W. McKeague held a second Rule 16 scheduling conference on August 21, 2000. Brunswick raised the issue of possible disqualification of Dykema Gossett from representing plaintiffs in this lawsuit based upon Dykema Gossett's prior representation of PRP defendants in connection with the nearby West KL Avenue Landfill site in Kalamazoo, Michigan. Judge McKeague's August 25, 2000 case management order (docket # 67, ¶ 6b) established October 1, 2000, as the deadline for any motions to disqualify Dykema Gossett. On September 29, 2000, defendant Brunswick Corporation filed a timely motion to disqualify Dykema Gossett. (docket # 77). Plaintiffs filed a response brief on October 13, 2000. (docket # 83). On October 13, 2000, defendant MDS filed a brief in support of Brunswick's motion to disqualify Dykema Gossett. (docket # 81). On October 19, 2000, plaintiffs filed a motion to strike MDS's brief in support of Brunswick's motion to disqualify. (docket # 88). The court conducted a hearing on October 20, 2000, on Brunswick's motion to disqualify Dykema Gossett. Brunswick's motion to disqualify Dykema Gossett (docket # 77) will be granted and plaintiff's motion to strike MDS's brief (docket # 88) will be denied.

Motion to Strike

Before addressing the merits of Brunswick's motion to disqualify, the court must first resolve plaintiffs' motion under Fed.R.Civ.P. 12(f) to strike defendant MDS's brief in support of Brunswick's motion. (docket # 88). Motions to strike under Rule 12(f) are generally disfavored. Federal Savings & Loan Ins. Corp. v. Burdette, 718 F.Supp. 649, 662 (E.D.Tenn. 1989). A motion to strike under Rule 12(f) is appropriate only where the pleading asserts an "insufficient defense" or constitutes a "redundant, immaterial, impertinent, or scandalous matter." FED.R.CIV.P. 12(f). MDS's brief does not fall within any of these categories. MDS's brief is simply not a pleading within the meaning of Fed. R.Civ.P. 7(a). Rule 12(f) does not apply.

Plaintiffs' assertion that MDS's brief was filed in violation of the court's case management order by failing to file its brief at an earlier date is meritless. Plaintiffs correctly point out that Judge McKeague's case management order set October 1, 2000, as the deadline for motions to disqualify Dykema Gossett. However, MDS did not file any separate motion to disqualify Dykema Gossett. Rather, on October 13, 2000, MDS filed a brief in reaction to Brunswick's motion, informing the court of its agreement with Brunswick's position. MDS's brief contained minor additional authorities and arguments, but was not supported by any evidence in the form of affidavits or otherwise. MDS's brief was filed a full week before the court's October 20, 2000 hearing on Brunswick's motion. As a party of record in this case, MDS had the right to respond to Brunswick's motion, either positively or negatively. Certainly, the brief of MDS, standing alone, would not warrant disqualification of Dykema Gossett. To uphold the motion to strike, this court would be required to say that only parties opposing a motion may be heard in response. Parties wishing to address the court in support of a request initiated by another party would be relegated to silence. Plaintiffs cite no authority in support of such an extraordinary proposition.

Plaintiffs did not file their motion to strike MDS's brief until October 19, 2000. The motion to strike was hand-delivered to the Clerk's Office, but a copy was not hand-delivered to chambers after the motion was filed. The Clerk's Office is located on a different floor of the Federal Building. Consequently, plaintiffs' motion to strike MDS's brief did not arrive in chambers until approximately halfway through the October 20 hearing on the motion to disqualify. During a break in the hearing, the motion to strike was brought to the court's attention. Plaintiffs' counsel had more than ample opportunity at the October 20 hearing to present other evidence or request additional time within which to respond to MDS's arguments. The court finds no prejudice to plaintiffs in considering the arguments raised and authorities cited in MDS's brief in support of Brunswick's motion to disqualify Dykema Gossett.

The court notes that, if anything, it was the plaintiffs who were technically in violation of the Local Civil Rules. Local Civil Rule 7.1(b) provides that "When allegations of facts not appearing in the record are relied upon in support of or in opposition to any motion, all affidavits or other documents relied upon to establish such facts shall accompany the motion." W.D.MICH.LCIVR 7.1(b). Attorney Ferroli's affidavit in opposition to Brunswick's motion was not submitted in compliance with this rule. The affidavit was filed separately with the court on October 16, 2000, three days after plaintiffs filed their brief in opposition to Brunswick's motion.

In summary, the efforts of MDS to address Brunswick's motion were within its rights as a party litigant and have not resulted in any prejudice to plaintiffs. Plaintiffs' motion to strike Michigan Disposal's brief will be denied.

Standard for Motion to Disqualify

The Sixth Circuit applies a three-part test for attorney disqualification: (1) a past attorney-client relationship existed between the party seeking disqualification and the attorney it seeks to disqualify; (2) the subject matter of those relationships was substantially related; and (3) the attorney acquired confidential information from the party seeking disqualification. Dana Corp. v. Blue Cross & Blue Shield Mut. of N. Ohio, 900 F.2d 882, 889 (6th Cir.1990). When confronted with such a motion, courts must be sensitive to the competing public policy interests of preserving client confidences and of permitting a party to retain counsel of its choice. Manning v. Waring, Cox, James, Sklar & Allen, 849 F.2d 222, 224 (6th Cir.1988). The movant has the burden of proving that opposing counsel should be disqualified. See Bartech Ind., Inc. v. Int'l Baking Co., Inc., 910 F.Supp. 388, 392 (E.D.Tenn. 1996). A decision to disqualify counsel must be based on a factual inquiry conducted in a manner which...