Roosevelt Irrigation Dist. v. Salt River Project Agricultural Improvement & Power Dist.

• Decision Date: 26 August 2011
• Docket Number: CV. No. 10–00290 DAE–MHB.
• Parties: ROOSEVELT IRRIGATION DISTRICT, a political subdivision of the State of Arizona, Plaintiff, v. SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT, a political subdivision of the State of Arizona; et al., Defendants.
• Court: U.S. District Court — District of Arizona

810 F.Supp.2d 929

ROOSEVELT IRRIGATION DISTRICT, a political subdivision of the State of Arizona, Plaintiff,

v.SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT, a political subdivision of the State of Arizona; et al., Defendants.

CV. No. 10–00290 DAE–MHB.

United States District Court, D. Arizona.

Aug. 26, 2011.

Bradley Joseph Glass, David J. DePippo, Michael K. Kennedy, Stuart Spencer Kimball, Gallagher & Kennedy P.A., Phoenix, AZ, for Plaintiff.

Craig Carson Hoffman, David John Armstrong, Ballard Spahr LLP, Mark A. McGinnis, Karen Sinodis Gaylord, Ronnie Perry Hawks, Salmon Lewis & Weldon PLC, Christopher David Thomas, Diane Joyce Humetewa, Matthew Luis Rojas, Squire Sanders & Dempsey LLP, Stephen Lawrence Wetherell, Phoenix City Attorneys Office, Brian Alexander Howie, Joseph Allen Drazek, Michael Shawn Catlett, Quarles & Brady LLP, Christopher L. Callahan, Phillip F. Fargotstein, John M. Pearce, Scott K. Ames, William Lee Thorpe, Fennemore Craig P.C., Thomas A. Stoops, Stoops Denious Wilson & Murray PLC, Troy Blinn Froderman, Jonathan Grant Brinson, Mitchell J. Klein, John Douglas Burnside, Anthony W. Merrill, Michael C. Ford, Polsinelli Shughart P.C., Allison Renee Edwards, Stephen D. Hoffman, Lewis Brisbois Bisgaard & Smith LLP, Margaret Olek Esler, Moyes Sellers & Hendricks, John Howard Gray, Shane R. Swindle, Jack Adam Vincent, Tawn T. Pritchette, Perkins Coie LLP, Jerry Doyle Worsham, II, Ridenour Hienton & Lewis PLLC, Larry C. Schafer, Warner Angle Hallam Jackson & Formanek PLC, Timothy James Sabo, Michael W. Patten, John Matthew Derstine, Roshka Dewulf & Patten

PLC, Joshua S. Akbar, SNR Denton U.S. LLP, Christopher James Berry, Katherine Rae Branch, Berry & Branch PLLC, Marc Allen Erpenbeck, G. Van Velsor Wolf, Jr., Snell & Wilmer LLP, Matthew Glenn Bingham, Robert Gerald Schaffer, Carla A. Consoli, Lewis & Roca LLP, Mark Jeffrey Andersen, Law Offices of Mark J. Andersen, Gerald K. Smith, Attorney at Law, Monty Lee Greek, Sara Rebecca Witthoft, Zwillinger Greek Zwillinger & Knecht P.C., William W. Pearson, Megan Irwin Lennox, Bryan Cave LLP, Scott Thomas Ashby, Bolliger Law Offices, Phoenix, AZ, Eric Mason, Ryan M. Nishimoto, Sean Morris, Arnold & Porter LLP, Los Angeles, CA, Amy E. Gaylord, Pillsbury Winthrop Shaw Pittman LLP, San Francisco, CA, Jerry Wayne Ross, Pillsbury Winthrop Shaw Pittman LLP, Andrew J. Torrant, Eva Fromm Obrien, Fulbright & Jaworski LLP, Houston, TX, Carl H. Helmstetter, Spencer Fane Britt & Browne LLP, Kansas City, MO, John R. Tellier, Titus Brueckner & Levine PLC, Matthew Joy, Eric Lynn Hiser, Trevor Joseph Louis Burggraff, Jorden Bischoff & Hiser PLC, Scottsdale, AZ, Jeffrey C. Fort, SNR Denton U.S. LLP, Alan Bruce White, Barnes & Thornburg, Chicago, IL, John Christopher Smith, Gerald K. Smith & John C. Smith Law Offices PLLC, Tucson, AZ, Howard M. Shanker, Shanker Law Firm PLC, David Vincent Seyer, Law Offices of David V. Seyer, Tempe, AZ, Brent Howard Bryson, Bryson Law Firm PLC, Mesa, AZ, Benjamin L. Snowden, William Hughes, Wallace King Domike & Reiskin PLLC, C. Scott Spear, Michelle R. Lambert, U.S. Dept. of Justice, Washington, DC, Douglas S. Arnold, Jody Marie Rhodes, Sarah T. Babcock, Alston & Bird LLP, Atlanta, GA, Walter Edward Rusinek, Procopio Cory Hargreaves & Savitch LLP, San Diego, CA, for Defendants.

Seven Angels LLC, Phoenix, AZ, pro se.Walker Power Systems Incorporated, Phoenix, AZ, pro se.Willmore Manufacturing Incorporated, Phoenix, AZ, pro se.

ORDER: (1) GRANTING HONEYWELL'S MOTION TO DISQUALIFY; (2) GRANTING CORNING'S MOTION TO DISQUALIFY; (3) GRANTING UNIVAR'S MOTION TO DISQUALIFY; (4) GRANTING SRP'S MOTION TO DISQUALIFY; (5) GRANTING DOLPHIN'S MOTION TO DISQUALIFY; (6) DENYING ARVIN AND COOPER'S MOTION TO DISQUALIFY

DAVID ALAN EZRA, District Judge.

On May 2, 2011, the Court heard Defendant Honeywell International, Inc.'s Motion to Disqualify Gallagher & Kennedy as Counsel for Roosevelt Irrigation District (“Honeywell's Motion to Disqualify”) (Doc. # 120); Defendant Corning Incorporated's Motion to Disqualify Counsel for Plaintiff (“Corning's Motion to Disqualify”) (Doc. # 129); Defendant Univar USA Inc.'s Motion to Disqualify Gallagher & Kennedy as Counsel for Roosevelt Irrigation District (“Univar's Motion to Disqualify”) (Doc. # 131); Defendant Salt River Project Agricultural Improvement and Power District's Motion to Disqualify Plaintiff's Counsel Gallagher & Kennedy (“SRP's Motion to Disqualify”) (Doc. # 132); Defendant Dolphin, Incorporated's Motion for Disqualification (“Dolphin's Motion to Disqualify”) (Doc. # 133); and Defendants ArvinMeritor, Inc. and Cooper Industries, LLC's Motion to Disqualify Gallagher & Kennedy, P.A. as Counsel for Roosevelt Irrigation District (“Arvin and Cooper's Motion to Disqualify”) (Doc. # 423) (collectively, “Motions to Disqualify”).

Michael K. Kennedy, Esq., Bradley Joseph Glass, Esq., and David DePippo, Esq., appeared at the hearing on behalf of Plaintiff Roosevelt Irrigation District (“RID”); Sean Morris, Esq., appeared at the hearing on behalf of Defendant Honeywell International, Inc. (“Honeywell”); Shane R. Swindle, Esq., appeared at the hearing on behalf of Defendant Corning Incorporated (“Corning”); Joseph Allen Drazek, Esq., appeared at the hearing on behalf of Defendant Univar USA Inc. (“Univar”); David John Armstrong, Esq., appeared at the hearing on behalf of Defendant Salt River Project Agricultural Improvement and Power District (“SRP”); Troy Blinn Froderman, Esq., appeared at the hearing on behalf of Defendant Dolphin, Incorporated (“Dolphin”); Jerry Doyle Worsham, II, Esq., appeared at the hearing on behalf of Defendants ArvinMeritor, Inc. (“Arvin”) and Cooper Industries, LLC (“Cooper”) (collectively, “Moving Defendants”).

After reviewing the motions and the supporting and opposing memoranda, and after considering Moving Defendants' in camera filings, the Court GRANTS Honeywell's Motion to Disqualify; GRANTS Corning's Motion to Disqualify; GRANTS Univar's Motion to Disqualify; GRANTS SRP's Motion to Disqualify; GRANTS Dolphin's Motion to Disqualify; and DENIES Arvin and Cooper's Motion to Disqualify.

BACKGROUND

This is a cost recovery action under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601 et seq. (“CERCLA”) among other laws, whereby Plaintiff Roosevelt Irrigation District (“RID”) seeks to recuperate the costs it has or will incur in responding to the contamination of its wells and to recover for damages to RID property. RID is a political subdivision of the State of Arizona, and it owns approximately 100 groundwater wells in the western portion of Maricopa County, Arizona. (FAC ¶¶ 7, 9, 89.) RID operates and maintains the groundwater wells for the purpose of providing water to public and private entities and individuals for industrial, agricultural, and residential uses. ( Id. ¶¶ 9, 89.) More than twenty of RID's groundwater wells in the West Van Buren Area (“WVBA”) Water Quality Assurance Revolving Fund (“WQARF”) Site have purportedly been contaminated by hazardous substances, and an additional eleven wells are allegedly threatened. ( Id. ¶¶ 11, 90.) RID asserts that the contamination of its wells stems from three regional sites identified by the Arizona Department of Environmental Quality (“ADEQ”) and the United States Environmental Protection Agency (the “EPA”). ( Id. ¶ 91.) Those three sites include: (1) the Motorola 52nd Street Superfund Site (the “M–52 Site”); (2) the WVBA WQARF Site; and (3) the West Central Phoenix (“WCP”) WQARF Site. ( Id.) According to RID, the contaminated groundwater underlying each of these sites is “moving in a southwesterly or westerly direction toward RID's groundwater wells” has “infiltrated and impacted” RID's wells. ( Id. ¶¶ 92–93.)

In October 2008, RID hired Gallagher & Kennedy, P.A. (“G & K”) to provide investigatory and legal services regarding, and to assist in resolving the issues associated with, the contamination of RID's wells. (Consolidated Opp'n Ex. 3, Declaration of David P. Kimball, III (“Kimball Decl. I”) ¶ 2.) The members of G & K's litigation team performing work on RID's behalf include: Michael Kennedy, David P. Kimball, III, Bradley J. Glass, David DePippo, Lindsi Weber, Stuart Kimball, Andrew Dudley, and Christine Goldberg. ( Id. ¶ 37.) On February 9, 2010, RID, represented by G & K, filed a Complaint in the United States District Court for the District of Arizona against dozens of defendants. (Doc. # 1.) RID filed a First Amended Complaint on July 23, 2010. (“FAC,” Doc. # 10.) Although RID primarily seeks to recover under CERCLA ( id. ¶¶ 1, 106–16), it also asserts causes of action for Quasi Contract, Unjust Enrichment, Restitution; Nuisance; and Trespass ( id. ¶¶ 117–32).

Shortly after RID filed its First Amended Complaint, several defendants filed motions to disqualify G & K as counsel for RID. These motions can be separated into two groups: (1) the former client motions to disqualify; and (2) the joint defense group motions to disqualify. Due to the complexity underlying these motions, the Court will first describe their factual underpinnings.

I. Former Client Motions to Disqualify

Defendants Honeywell International, Inc. (“Honeywell”) and Corning Incorporated (“Corning”) both seek to disqualify G & K on the basis that they are former clients of current G & K attorneys (collectively, “Former Client Motions to Disqualify”).

A. Honeywell's Motion to Disqualify

Honeywell's facilities, located immediately north of the Phoenix Sky Harbor Airport, (the “Honeywell Facilities”) are on the southern boundary of Operable Unit 2 (“OU–2”) of the M–52 Site.¹ (Declaration of Troy J. Kennedy, (“Troy Kennedy Decl. I”) ¶ 2, Doc. # 126.) In 1992, the EPA notified Honeywell that it and other potentially responsible parties (“PRPs”) might be liable for contamination originating from the M–52 Site. ( Id.) Since that time, Honeywell “negotiated extensively” with the...