Ly v. 2300 Chera Inv'rs, LLC

• Decision Date: 02 July 2019
• Docket Number: Case No: 6:18-cv-1274-Orl-40TBS
• Parties: DIANA M. LY, Plaintiff, v. 2300 CHERA INVESTORS, LLC and A T WONUS PROPERTY MANAGEMENT GROUP, LLC, Defendants.
• Court: U.S. District Court — Middle District of Florida

DIANA M. LY, Plaintiff, v. 2300 CHERA INVESTORS, LLCand A T WONUS PROPERTY MANAGEMENT GROUP, LLC, Defendants.

Case No: 6:18-cv-1274-Orl-40TBS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

July 2, 2019

ORDER

This Fair Housing Act case comes before the Court without a hearing on Plaintiff's Renewed Motion to Disqualify Counsel (Doc. 45). Defendants have filed a response in opposition to the motion (Doc. 46), and Plaintiff has filed a reply (Doc. 47).

Background

In 2018, Plaintiff Diana M. Ly and her boyfriend rented a place to live from Defendant 2300 Chera Investors, LLC (Doc. 32-2, ¶ 3). The property is managed by Defendant A T Wonus Property Management Group (Id.). After renting the premises, Plaintiff informed the property manager that she had an emotional support animal ("ESA") and would provide a doctor's note to confirm her need for the ESA (Id., ¶ 4). Defendants were not satisfied with the information provided by Plaintiff and asked her to sign a Limited Medical Release and Medical Certification (Id., ¶ 7). Rather than sign Defendants' form, Plaintiff had her psychiatrist, Dr. Sonny Joseph send a note stating that Plaintiff was under his treatment and he recommended she be allowed to have her ESA "for emotional support at all times." (Id., ¶¶ 8-9). This did not satisfy Defendants who wanted the signed Limited Medical Release or a more detailed letter from Dr. Joseph evidencing Plaintiff's need for an ESA (Id., ¶ 11). Then Dr. Joseph's office told Plaintiff someone representing Defendants had called and demanded copies of her medical file (Id., ¶ 13). This caused Plaintiff to write to the property manager, expressing her reluctance to reveal the details of her disability (Id., ¶ 15). Here is what Plaintiff says happened next:

16. Later in the afternoon of July 10, 2018, subsequent to the email exchanges between me and Mr. Matamoros identified above, I received a telephone call from Attorney Jay L. Swistak, who identified himself as the attorney for Atrium, who I believed to the "Jay" previously identified to me by Mr. Matamoros. During the call, Attorney Swistak berated me, told me I was "stupid"; that "ESA's are not a real thing"; that I was going to get sued and evicted; insisting that I simply sign the "Limited Medical Release Form", and that he could not understand why I did not sign, and that my failure to so was a "red flag"; inaccurately insisting that I had no proof that I was even suffering from a disability prior to July 9, 2018, suggesting that I had made it up to obtain my ESA; that a plaintiff can see a psychiatrist for any reason; reiterating that I was "stupid" and that "ESAs are a bunch of BS" that have raised serious issues in other states familiar to Attorney Swistak. When I expressed my outrage that he would speak to me in this manner, that he was not to call me again, and that I wanted to speak with an attorney, Attorney Swistak told me that "you probably don't have one"; and "you probably cannot afford one."

17. Later that same afternoon, I received an email from Attorney Swistak acknowledging the telephone conversation of earlier that day, insisting that my Support Animal Registration for my ESA was "not legitimate documentation or credible evidence of your disability and need for a support animal"; arguing that "landlords are permitted to make reasonable inquiry to establish the disability and need for a service/support animal; and that he was only seeking to "conduct a very limited inquiry to verify information you allege."

(Id., ¶¶ 16-17). Plaintiff contends that Swistak's actions evidence "a campaign of illegal and unreasonable harassment and retaliation against Plaintiff, including unlawful andunreasonable rejection of her ESA certifications largely fueled upon a belief, as expressed by Attorney Swistak, that ESAs are 'BS'" (Doc. 1, ¶ 38).

Swistak has filed his own affidavit stating:

1. I have been a member of the Florida Bar since 2007.

2. I have defended multiple clients against claims of violations of The Fair Housing Act and I am very familiar with fair housing law.

3. I am the attorney of record for 2300 Chera Investors LLC and AT Wonus Property Management Group LLC, defendants in this action.

4. I am familiar with the facts related to Plaintiffs request for a reasonable accommodation in the pending matter.

5. I have had communications with both Plaintiff and Defendants regarding Plaintiff's request for a reasonable accommodation.

6. The July 10, 2018 telephone call that I had with Plaintiff was amicable. During the conversation, I explained to her the landlord's need and right to a meaningful review of her request for a reasonable accommodation.

7. Plaintiff declined to discuss her request for an accommodation over the telephone and requested all communications be via email.

8. Plaintiffs assertion that I berated her is not true. Her allegation that I stated she was "stupid," that emotional support animals are "BS," that "ESAs are not a real thing," and that "she could not afford an attorney" are untrue.

9. My emails to Plaintiff repeatedly requested that she have her attorney contact me to discuss her accommodation request and Defendants' need to conduct a meaningful review of her request.

10. I did inform Plaintiff that the emotional support animal registration and certificate she purchased via the internet were insufficient information to grant her request for a reasonable accommodation.

11. I did contact Dr. Sonny Joseph's office as he requested I do in letters dated July 9, 2019 and July 12, 2018; however, I never spoke with Dr. Joseph.

12. I did not request any of Plaintiffs medical records.

13. The emails attached to Defendants' Motion for Summary Judgment between Plaintiff and myself are true and accurate copies of the emails I exchanged with Plaintiff.

14. In the event I testify in this matter, my testimony will be limited to my communications with Plaintiff and the telephone call I had with an employee of Dr. Joseph.

15. Any testimony I provide, will be supportive of Defendants' defenses in this action.

(Doc. 43).

Plaintiff is asking the Court to disqualify Swistak on the ground that he will be a witness in this case (Doc. 45, ¶ 7). Defendants argue that Swistak should not be disqualified because he is at most, a rebuttal witness to conversations they contend "are completely irrelevant to whether Defendants knew or should have known of Plaintiff's alleged disability or whether Plaintiff has established, or will be able to establish at trial, a prima facie case of discrimination." (Doc. 46 at 2).

Legal Standard

There are two sources of a court's authority to consider a motion to disqualify an attorney. First, attorneys are bound by the rules of the court in which they appear. Second, their professional conduct is governed by federal common law, "because motions to disqualify are substantive motions affecting the rights of the parties." Herrmann v. GutterGuard, Inc., 199 F. App'x. 745, 752 (11th Cir. 2006).

Motions to disqualify opposing counsel are "'generally viewed with skepticism because ... [they] are often interposed for tactical purposes.'" Yang Enter., Inc. v.Georgalis, 988 So. 2d 1180, 1183 (Fla. 1st DCA 2008) (quoting Alexander v. Tandem Staffing Solutions, Inc., 881 So. 2d 607, 608-09 (Fla. 4th DCA 2004)). The burden of proof is on the party bringing the motion for disqualification. Id.

"'Because a party is presumptively entitled to the counsel of his choice, that right may be overridden only if 'compelling reasons' exist.'" Herrmann,199 F. App'x at 752 (quoting In re: BellSouth Corp., 334 F.3d 941, 961 (11th Cir. 2003)). "Disqualification of a party's chosen attorney is an extraordinary remedy that should be resorted to only sparingly ..." Steinberg v. Winn-Dixie Stores Inc., 121 So. 3d 622, 624 (Fla. 4th DCA 2013) (quoting Arcara v. Philip M. Warren, P.A., 574 So. 2d 325, 326 (Fla. 4th DCA 1991) (citing Gen. Accident Ins. Co. v. Borg-Warner Acceptance Corp., 483 So.2d 505 (Fla. 4th DCA 1986)).

"An order disqualifying counsel 'must be tested against standards imposed by [the] Rules of Professional Conduct.'" AlliedSignal Recovery Trust v. AlliedSignal, Inc., 934 So. 2d 675, 678 (Fla. 2d DCA 2006) (quoting Tobkin v. Tobkin, 843 So. 2d 961, 962 (Fla. 4th DCA 2003) (quoting City of Lauderdale Lakes v. Enter. Leasing Co., 654 So. 2d 645, 646 (Fla. 4th DCA 1995)). The Rules Regulating the Florida Bar provide:

(a) When Lawyer May Testify. A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony;

(3) the testimony relates to the nature and value of legal services rendered in the case; or

(4) disqualification of the lawyer would work substantial hardship on the client.

R. Regulating Fla. Bar. 4-3.7(a) (2018). "[T]he rule requiring a lawyer to withdraw when he expects to be a witness in the case 'was not designed to permit a lawyer to call opposing counsel as a witness and thereby disqualify him as counsel.'" Arcara, 574 So. 2d at 326 (quoting Cazares v. Church of Scientology of Calif., Inc., 429 So. 2d 348, 350 (Fla. 5th DCA), review denied, 438 So. 2d 831 (Fla. 1983)). But it is possible for a conflict requiring disqualification to arise if a party calls the opponent's lawyer as a witness and the lawyer's testimony is adverse to the client's position. Steinberg, 121 So.3d at 625; Allstate Ins. Co. v. English, 588 So. 2d 294, 295 (Fla. 2d DCA 1991).

The party moving for disqualification of opposing counsel has the burden of showing "the necessity of the attorney's testimony and thus his disqualification." Quality Air Conditioning Co., Inc. v. Vrastil, 895 So. 2d 1236, 1237 (Fla. 4th DCA 2005) (quoting Hiatt v. Estate of Hiatt, 837 So. 2d 1132, 1133 (Fla. 4th DCA 20...