O'Hanlon v. Accessu2 Mobile Solutions, LLC
| Decision Date | 26 July 2018 |
| Docket Number | Civil Action No. 18-cv-00185-RBJ-NYW |
| Parties | KENNETH P. O'HANLON, Plaintiff, v. ACCESSU2 MOBILE SOLUTIONS, LLC, EBH, LLC, MICHAEL COHIG, PAUL ZORN, MICHAEL FOSSENIER, LAWRENCE E. CRANE, E B H, LLC, DAVID PALM, EDSON B. HUTCHINSON, and JOHN DOES 1-15, Defendants. |
| Court | U.S. District Court — District of Colorado |
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the court on several pending motions:
(1) Defendants AccessU2 Mobile Solutions, LLC ("AccessU2"), E B H, LLC, and David Palm's Motion to Dismiss Amended Complaint, or in the Alternative, Motion for Summary Judgment (the "AccessU2 Motion") [#49, filed March 9, 2018];
(2) Plaintiff Kenneth P. O'Hanlon's ("Plaintiff" or "Mr. O'Hanlon") "Motion for Disqualification of Attorneys for Defendants on the Grounds of Conflict of Interest, Violation of DR-5 of the Rules of Professional Conduct and Violation of Rules 1.7(a) and 1.9(a) of the Model Code of Professional Conduct" (the "Motion for Disqualification") [#64, filed April 17, 2018]; (3) Plaintiff's Motion to Amend Complaint and Grant Leave for the Amended Complaint (the "Motion to Amend") [#74, filed May 4, 2018];
(4) Defendant Michael Cohig's Motion to Quash Service of Process ("Motion to Quash") [#81, filed May 21, 2018];
(5) Defendant Paul Zorn's Motion to Dismiss Amended Complaint, or in the Alternative, Motion for Summary Judgment (the "Zorn Motion") [#82, filed May 21, 2018];1 and
(6) Defendant Michael Fossenier's Motion to Quash Service of Process ("Motion to Quash") [#86, filed May 24, 2018].
The undersigned considers the Motions pursuant to 28 U.S.C. § 636(b), Rule 72 of the Federal Rules of Civil Procedure, and the memoranda dated March 14, 2018 [#54], April 18, 2018 [#66], May 7, 2018 [#78], May 22, 2018 [#83], and May 24, 2018 [#87]. This court concludes that oral argument will not materially assist in the resolution of this matter. Therefore, having carefully reviewed the Motions and associated briefing, the applicable case law, and the entire docket, this court respectfully RECOMMENDS that the AccessU2 Motion and Zorn Motion be GRANTED and Plaintiff's Motion to Amend be DENIED. Further, it is ORDERED that Plaintiff's Motion for Disqualification is DENIED and Defendant Cohig's Motion to Quash and Defendant Fossenier's Motion to Quash are GRANTED.
The court has discussed the background of this matter in several prior Orders, see, e.g., [#6; #18; #26; #62], and discusses it here only as it pertains to the instant Motions. Mr. O'Hanlon initiated this action by filing his pro se Complaint on January 24, 2018. [#1]. As Defendants in this action Plaintiff names several limited liability companies ("LLC") and severalindividuals allegedly associated with those entities (collectively, "Defendants"). [Id.]. Plaintiff alleges that Defendants actively deceived and defrauded him to remove him from AccessU2 without fair compensation and robbed him of fair market value for his development of patented technology. See generally #19]; see also [#56 at 8]. Following an Order to Show Cause why this matter should not be dismissed for want of subject matter jurisdiction, see [#6], and several Motions to Quash Service of Process of the initial Complaint by individual Defendants, see [#21; #33; #36], Plaintiff filed his First Amended Complaint ("FAC") on February 13, 2018, see [#19], the operative pleading in this matter.
The FAC asserts four claims against Defendants for (1) improperly determining his distributive shares of AccessU2 in violation of 26 U.S.C. § 704(b) and corresponding tax code regulations ("Claim 1"); (2) failing to provide accurate K-1 tax filings and filing fraudulent K-1 tax filings with the Internal Revenue Service ("IRS") in violation of federal tax law ("Claim 2"); (3) improperly valuing Patent No. 7,643,821 B2 (the "'821 Patent") as it relates to his distributive shares of AccessU2 in violation of 26 U.S.C. § 704(b) and corresponding tax code regulations ("Claim 3"); and (4) civil theft of the '821 Patent, unjust enrichment, and violations of the federal Uniform Trade Secrets Act, which this court construes as violations of the Defend Trade Secrets Act ("DTSA"), 18 U.S.C. §§ 1832, 1836(b) ("Claim 4"). See [#19]. The undersigned provided Plaintiff until March 9, 2018, to serve Defendants properly with the FAC. See [#26]. Though Mr. O'Hanlon purportedly served Defendants properly, see [#40 through #48], several individual Defendants again moved to quash service of process, prompting this court to permit Mr. O'Hanlon to cure any deficiencies in service by May 1, 2018, with the express warning that failure to do so may result in a recommendation that improperly served Defendants be dismissed without prejudice from this action. See [#65]. Per Mr. O'Hanlon'srequest, he received an additional two weeks to serve Defendants Fossenier and Crane. See [#73]. Presently, Defendants Fossenier and Cohig have moved to quash service of process. See [#81; #86].
On March 9, 2018, Defendants AccessU2, E B H, LLC, and David Palm moved to dismiss the FAC or for summary judgment in the alternative, because Mr. O'Hanlon's claims are barred by (1) accord, satisfaction, and release, (2) the statute of limitations, and (3) claim preclusion. See generally [#49]. The AccessU2 Motion asserts that the legal disputes between Plaintiff and Defendants have been lingering for several years, including prior litigation in the District Court for the City and County of Denver ("Denver District Court"). See generally [id.]; see also [#19 at p.12, ¶ 34]. And, as noted above, Defendant Zorn filed a similar Motion on May 21, 2018. [#82].
Plaintiff then filed his Motion for Disqualification on April 17, 2018. See [#64]. He contends that the court should disqualify defense counsel Stuart Mann from representing all Defendants, because a conflict of interest exists among the Defendants given that Mr. O'Hanlon seeks to hold each accountable to varying degrees, which may pit several Defendants against one another. See generally [id.]. He also asserts that not all Defendants have consented to Mr. Mann's representation such that Mr. Mann's representation of all Defendants is materially limited because he may abdicate his responsibilities to some Defendants as opposed to others.
On April 20, 2018, Plaintiff filed a proposed Second Amended Complaint [#67], which the undersigned struck for failure to comply with the Federal Rules of Civil Procedure as well as this District's Local Rules of Civil Practice. See [#68]. But given Mr. O'Hanlon's apparent desire to file a Second Amended Complaint, this court set a deadline of May 8, 2018 for thejoinder of parties and amendment of pleadings. See [id.]. Mr. O'Hanlon filed the instant Motion to Amend on May 4, 2018 [#74].
The Motions are now ripe for disposition and/or recommendation. This court first considers Plaintiff's Motion for Disqualification given the potential consequences on the action in general should the court prohibit Mr. Mann from continuing to represent Defendants. Next, I consider the Motion to Amend, because a superseding complaint moots any Motions to Dismiss aimed at an inoperative pleading. See Gotfredson v. Larsen LP, 432 F. Supp. 2d 1163, 1172 (D. Colo. 2006). Given this court's conclusion on the Motion to Amend, I then turn to the AccessU2 Motion and the Motions to Quash. In considering each of these motions this court affords a liberal construction to Mr. O'Hanlon's papers because he proceeds pro se, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), but it does not act as his advocate and applies the same procedural rules and substantive law to Mr. O'Hanlon as to a represented party, Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir. 2008).
"A motion to disqualify rests with the sound discretion of the trial court." Quark, Inc. v. Power Up Software Corp., 812 F. Supp. 178, 179 (D. Colo. 1992). As the moving party, Mr. O'Hanlon has the burden of establishing the grounds for disqualifying defense counsel. See Religious Tech. Ctr. v. F.A.C.T.Net, Inc., 945 F. Supp. 1470, 1473 (D. Colo. 1996). This is a significant task, as "courts have historically been highly cynical of motions to disqualifyopposing counsel, noting that such motions are often dilatory or tactical devices." Miller v. Deustche Bank Nat'l Trust Co., No. 12-cv-03278-PAB, 2013 WL 4776054, at *5 (D. Colo. Sept. 4, 2013). Thus, to guard against the nefarious purpose of securing a strategic advantage courts must make specific findings of facts and conclusions of law when considering whether the appropriateness of disqualification. See World Youth Day, Inc. v. Famous Artists Merch. Exch., Inc., 866 F. Supp. 1297, 1299 (D. Colo. 1994). When, as here, the record is sufficient for making such a determination, no evidentiary hearing is required. See Weeks v. Independent School Dist. No. I-89, 230 F.3d 1201, 1212 (10th Cir. 2000) ().
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