UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

NORTHWEST BYPASS GROUP, et al.

Plaintiffs,

V.

U.S. ARMY CORPS

OF ENGINEERS, et al.

Defendants.

Civil No. 06-CV-00258-JAW

ORDER ON PLAINTIFFS' MOTION FOR SANCTIONS AND

MOTION TO DISQUALIFY COUNSEL

Morton and Carolyn Tuttle move for sanctions against the City of Concord, alleging the

City engaged in potential violations of criminal law and breached its contractual duty of good

faith and fair dealing . The Tuttles also move to disqualify the City's attorney from representing

Martha Drukker, a city employee. The Court concludes the Tuttles ' motions are ill-founded, and

denies then reserving for later whether, and the extent to which, it should impose sanctions

against the Tuttles and their counsel for filing the motions.1

I. STATEMENT OF FACTS

A. Procedural History

On March 18, 2007, the Tuttles filed a strongly-worded motion requesting the Court to

sanction the dty of Concord. See Pls. ' Mot. for the Imposition of Sanctions for the City of

Concord's Bad Faith Tactics Constituting Obstruction ofJustice (Docket # 107) (Pls. 'Mot.). In

response , the City characterized the Plaintiffs' motion as "without merit and demanded its

1 Technically, the motions were filed by all the Plaintiffs, including Northwest Bypass Group, the Tuttles, and Leslie

J. Ludtke; however, the motions relate to conduct only between the City and the Tuttles and the Court is treating the

dispute as being between them. It seems inappropriate, for example, to impose a sanction against Ms. Ludtke,

despite the fact these motions were filed in part in her name.

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counsel fees. See Def. City of Concord's Obj. to Pls. 'Mot. for the Imposition of Sanctions at 2

(Docket # 111) (City's Obj.). Although the Tuttles do not seek sanctions against the United

States Army Corps of Engineers (Corps), the Corps objects to the motion, since one of the

proposed remedies is a default judgment against all defendants. See Federal Defs. 'Resp. to Pls. '

Mot. for Imposition ofSanction Against the City of Concord (Docket # 112).2

Following the filing of the motion for sanctions , the Tuttles filed an additional motion

asking the Court: (1) to disqualify the City's lawyer from representing Ms. Drukker; and, (2) to

strike Ms. Drukker's affidavit. See Mot. to Disqualify the Def. City's Counsel from

Representation of Ms. Drukker and to Accordingly Strike the Aff. of Martha Drukker (Docket

# 114) (Pls. 'Mot. to Disqualify). After the City filed its objection, Plaintiffs replied. See Pls. '

Mot. for Leave to File Reply to the Def. City of Concord's Obj. to Pls. ' Mot. to Disqualify

(Docket # 116) (Pls. 'Reply) s

B. Local Rule 7.1 and Judicial Notice

The Tuttles did not file an affidavit in support of their motion, as required by the Local

Rules. See LR 7.1(a)(2) ("Every motion and objection which require consideration of facts not

in the record shall be accompanied by affidavits or other documents showing those facts. ).

Because the Tuttles allege facts outside the record, they should have filed an affidavit to comply

with the rule. Instead, they ask the Court to take judicial notice of three newspaper articles from

the Concord Monitor, the Tuttles' acquiescence to the City's proposal to relocate the Tuttle

House to a site on Rockland Road, a copy of an e-mail from Peter Clary, an engineer, to Martha

Drukker, a copy of the minutes of the Concord Zoning Board of Adjustment (ZBA) meeting for

January 3, 2007, copies of Ms. Drukker's handwritten notes of the January 12, 2007 conversation

2

Plaintiffs moved for leave to file a reply to the City's opposition. Pls. ' Mot. for Leave to File Reply to the Def.

City ofConcord's Obj. to Pls.' Mot. for Sanctions (Docket # 113). The Court GRANTS the Plaintiffs' motion.

3 With respect to the motion to disqualify, the request for leave to file a reply is GRANTED (Docket # 116).

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with Mr. and Mrs. Tuttle, and a copy of a letter dated February 6, 2007 from Attorney Kinder to

Attorney Blakeney. Ms. Drukker's handwritten notes are attached to her affidavit in the City's

filing and, therefore, the Court will consider them.

The City has a valid point on the Tuttles' failure to comply with the Local Rule's

affidavit requirement. Presumably, the Rule's purpose is to avoid placing evidence before the

Court by motion that could not be admitted at trial. Further, the affidavit requires an oath and,

thereby, encourages accuracy. The most obvious sanction would be to exclude unattested

documents from consideration. Here, however, the Plaintiffs' attachments are either newspaper

articles or government records, the essential accuracy of which has not been challenged.

Because the documents are what they purport to be, to sanction the Plaintiffs for the failure to

comply with the Local Rule appears disproportionate. At the same time, the Court reminds

counsel that the Rule exists to be followed.

The Plaintiffs also request the Court take judicial notice of its attachments. To be subject

to judicial notice, the fact must be "one not subject to reasonable dispute in that it is either (1)

generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and

ready determination by resort to sources whose accuracy cannot reasonably be questioned.

FED. R. Evm. 201(b); see Lussier v. Runyon, 50 F.3d 1103, 1105-06 (1st Cir. 1995) ("Courts

have tended b apply Rule 201(b) stringently .... ). Nevertheless, depending on the content,

facts reported in newspaper articles may be considered "generally known. See 1-201

WEINSTEIN's FEDERAL EvmENCE § 201.11 [2]; compare Cofield v. Alabama Public Serv.

Comm'n, 936 F.2d 512, 517 (11th Cir. 1991) ("That a statement of fact appears in a daily

newspaper does not of itself establish that the stated fact is `capable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably be questioned.' ); Fant v.

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Residential Servs. Validated Publ'ns, 1:06-CV-00934-SMS, 2007 U.S. Dist. LEXIS 23010 (E.D.

Cal. Mar. 16, 2007); with Ritter v. Hughes Aircraft Co., 58 F.3d 454, 458 (9th Cir. 1995).

In the absence of the City's objection to the content of the attachments, the Court has

considered only those facts that appear undisputed, such as that the Concord ZBA held a hearing

and denied the Rockland Road variance on January 3, 2007. Similarly, as the City did not object

to the genuineness and accuracy of the ZBA minutes or the letter from City's counsel dated

February 6, 2007, the Court will consider those documents. The Court will not, h wever, take

judicial notice of the contents of the e-mail from Peter Clary, a private engineer, to Ms. Drukker,

since it does not, under any measure, fit within the requirements for judicial notice.

C. The Factual Background of the Motion

Morton and Carolyn Tuttle live together in the historic Tuttle House, a property eligible

for listing on the National Historic Register and located in the path of the Northwest Bypass, a

proposed road in the center of Concord that has been the source of intractable and extensive

litigation . Martha Drukker, an Assistant City Engineer, has been employed by the city of

Concord since 1989 and has been Project Manager of the Northwest Bypass Project since 1990.

Aff. ofMartha Drukker 11 1, 2 (Docket # 111-2) (Drukker Aff.). Over the last ten years, Ms.

Drukker has had "numerous conversations with the Tuttles about the eventual relocation of their

house; she characterizes those conversations as "friendly. Id. ¶ 3. Ms. Drukker has engaged

in an extensive search for alternative lots where the Tuttle House could be relocated and the City

has presented " 19 lots to them for consideration . Id. ¶ 5. In 2002, the City focused on a

potential lot located at Gabby Lane. Id. ¶ 7. The Tuttles initially liked the lot, but later decided

it was not acceptable .4 Id. The City, the Corps , and the State Historic Preservation Office

4 The Tuttles say that they found the Gabby Lane lot unacceptable only after the City proposed to significantly

reduce the size of the lot, which preceded the City's actual acquisition of the property. Pls. 'Reply at 1-3.

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continued to consider the Gabby Lane lot acceptable and the City not only ended up purchasing

the lot for $95,000.00 on October 10, 2002, but also signed a Memorandum of Agreement

(MOA) incorporating a requirement that the City move the lnuse to the Gabby Lane lot. Id.

After the lot size for the Gabby Lane parcel was reduced, the Tuttles no longer wished to move

there and they never signed the MOA.

After the Tuttles initiated this federal lawsuit in July 2006, the City continued to consider

other lots that might be acceptable to the Tuttles. Id. ¶ 9. In October, 2006, the City located a

site at Rockland Road that the Tuttles seemed to like and although the lot required zoning

variances, the City agreed to pursue approval with the ZBA. Id. ¶ 10. On January 3, 2007, after

a public hearing during which there was considerable public criticism of the City's efforts to

accommodate the Tuttles, the ZBA denied the City's request for a variance. Id. One of the areas

of public criticism was that the City had continued to look for alternative lots for the Tuttles

when it had already purchased what it had considered to be a suitable lot. Id.

On January 12, 2007, Ms. Drukker telephoned Mr. and Mrs. Tuttle to tell them what had

happened at the ZBA hearing and to explain that the Rockland Road alternative was "not going

to work and probably Gabby Lane was going to be the only practical alternative. Id. ¶ 11. Ms.

Drukker further told the Tuttles that the City "might not want to pursue other lots given the

public concerns expressed at the variance hearing about the expense of acquiring another lot, the

project schedule, and the rising expenses of the pending litigation. Id. She emphasized that she

"did not know what the Council would or would not authorize regarding continuing efforts to

find another lot, but said that it "might not authorize additional efforts to fmd another lot. Id.

¶ 12. She reported that the Tuttles "seemed to not understand that they were suing the City and

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said they had not authorized the suit and that Mr. Blakeney did not represent them .... Id.

113.

On February 6, 2007, Tupper Kinder, the City's lawyer, wrote to Gordon R. Blakeney,

the Tuttles' lawyer, and asked for clarification as to whether Mr. Blakeney was "authorized to

represent Mr. and Mrs. Tuttle in this pending federal court litigation. sPls. ' Mot Ex. 8. On

February 22, 2007, Mr. Blakeney responded, requesting that "the City immediately cease and

desist all direct contact with [the Tuttles] regarding this matter, and henceforth deal strictly

through [him]. Pls. 'Reply Ex. 2. The City's attorney subsequently advised Ms. Drukker of Mr.

Blakeney's request, and she has not spoken with them since. Drukker Aff. ¶ 17.

D. The Tuttles' Motion for Sanctions

On March 18, 2007, the Tuttles filed a motion for sanctions against the City, alleging it

had engaged in bad faith tactics constituting obstruction ofjustice. The gist of the motion is that

the City - through Ms. Drukker - had contacted the Tuttles, whom it knew were represented by

counsel, and pressed them to drop their participation in the federal lawsuit in exchange for the

City's willingness to continue to seek other relocation options for the Tuttle House. Further, the

Tuttles allege that Ms. Drukker's statements were not only a violation of the City's obligations

under the MOA, but were unauthorized. Finally, the Tuttles claim that Ms. Drukker's actions

constituted criminal obstruction ofjustice or were part of a conspiracy to obstruct justice.

The Tuttles request one or more of the following: (1) a judicial determination that the

City "acted unfairly and in bad faith and breached its contractually implied covenant of good

5 Mr. Blakeney has not always been the Tuttles' attorney in their discussions with the City. The Administrative

Record reveals that as early as October 6, 2000, Ms. Drukker met with the Tuttles and their attorney, Kevin Leach,

to discuss the Northwest Bypass project, AR at 3:57-58, and on January 25, 2001, Ms. Drukker copied Attorney

Leach in correspondence concerning the Tuttle House. AR 3:47-52. She continued to correspond with Mr. Leach at

least as late as March 17, 2004. AR at 3:25-27. At the latest, Mr. Blakeney assumed representation of the Tuttles in

the summer of 2006 when he filed the pending lawsuit on their behalf.

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faith and fair dealing with respect to the Tuttle plaintiffs, and/or a finding and declaration that the

Defendant City corruptly and/or in bad faith attempted to obstruct, influence, or impede this

judicial proceeding; (2) rescission of the order denying the Plaintiffs' motion for preliminary

injunction, and issuance of a preliminary injunction against the City; (3) a "partial form of the

remedy ... whereby the preliminary injunction, once issued, could be dissolved at the request of

the Defendant City, with the Tuttle plaintiffs' consent; (4) a finding and declaration that the

City caused the Tuttles emotional distress and a corresponding award of compensatory damages

to the Tuttles; (5) a fine payable to the United States Treasury; and, (6) an award of attorney's

fees to the Plaintiffs. Pls.'Mot. at 12-13. The Plaintiffs suggest that a referral to the United

States Attorney or to the Federal Bureau of Investigation might also be in order. Id. at 13.

E. The City' s Response

The City responded by describing the Tuttles' allegations as "wildly inaccurate and

unsupported by any legal precedent. City's Obj. at 2. In addition to supplying the Drukker

affidavit, the City also noted that the Tuttles filed their motion nine days after the City began the

first step in exercising its power of eminent domain over the Tuttle House. Id. Ex. B. Finally,

the City argued that the motion failed to comply with Local Rules and Rule 11. It has requested

an award of attorney's fees for responding to the motion, which it describes as "vexatious

litigation tactics. Id. at 11.

F. The Tuttles' Reply

In their reply, the Tuttles reassert that Ms. Drukker is exposed to "potential criminal

liability, at least pursuant to Title 18, United States Code, Section 1513(e) (conspiracy liability).

Pls. ' Reply at 2. They compare Ms. Drukker's affidavit with her handwritten notes of her

January 12, 2007 conversation with the Tuttles and assert that the notes do not mention the

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public criticism of the City at the ZBA neeting. Id. at 5. Instead, the Plaintiffs state that Ms.

Drukker's notes reflect only that she mentioned the ongoing lawsuit as the impediment to the

City's willingness to consider other lots. Id. at 6. They claim that Ms. Drukker attempted to

induce the Tuttles to drop their lawsuit by mentioning the possibility of other lots ("Informed

them I had received calls from a few owners of lots that they thought they would like in the West

End ), which the City could pursue, but for the pending lawsuit. Id. Finally, the Plaintiffs

justify their motion by citing 18 U.S.C. § 4 ("misprision of felony ), stating that they were

obligated to bring the possibility of the commission of a crime to the Court's attention. Id. at 8.

H. DISCUSSION

A. Plaintiffs ' Motion for Sanctions

1. Ms. Drukker' s Contact With The Tuttles

To the extent that the Tuttles are claiming that Mr. Drukker's contact with them violated

a law or rule, they are plainly wrong. The prohibition against a lawyer contacting a person he or

she knows is represented by another lawyer does not apply to non-lawyers.6 Sealed Appellant I

v. Sealed Appellee II, 156 Fed. Appx. 630, 634 (5th Cir. 2005) ("The rules of professional

conduct prevent counsel from contacting persons represented by counsel but do not prohibit

communication between a lawyer's client and persons, organizations, or entities of government

represented by counsel, as long as the lawyer does not cause or encourage the communication

without the consent of the lawyer for the other party. ) (emphasis in original) (internal

punctuation and citation omitted); Dorsey v. Home Depot U.S.A., Inc., 271 F. Supp. 2d 726, 730

6 Rule 4.2 of the New Hampshire Rules of Professional Conduct provides: "In representing a client, a lawyer shall

not communicate about the subject of the representation with a person the lawyer knows to be represented by

another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law

or a court order. N.H. Rur,ES OF PROF'L CONDUCT R. 4.2. This Rule is identical to the Model Rule, which in

Comment 4 states in part: "Parties to a matter may communicate directly with each other .... MODEL RuLES OF

PROF' L CONDUCT R. 4.2 cmt. 4.

8

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(D. Md. 2003) ("Nothing in the law prohibits litigants or potential litigants from speaking among

and between themselves, as opposed to attorneys for such parties attempting direct

communications with represented parties. ). In fact, in Siguel v. Trustees of Tufts College, No.

88-0626-Y, 1990 U.S. Dist. LEXIS 2775 (D. Mass. Mar. 12, 1990), Judge Young commented

that "such contact among parties is generally encouraged as a means of facilitating settlement

and of avoiding protracted litigation. Id. at *5. This is not a case where Ms. Drukker contacted

the Tuttles at the direction of the City's attorney nor is it a case where she contacted them after

being instructed by their counsel not to do so. Instead, Ms. Drukker contacted the Tuttles in a

manner consistent with her longstanding relationship with them. There is nothing either illegal

or improper in her doing so.

2. Obstruction of Justice

By far, the Tuttles' most serious charge is that Ms. Drukker may have committed the

crime of obstruction of justice or conspiracy to obstruct justice: "The City's ... unfair and bad

faith acts also constitute an attempt to corruptly obstruct, influence, or impede this judicial

proceeding .... Pls. ' Mot. at 12. First, they charge the City with a violation of 18 U.S.C.

§ 1512(c)(2):7

Whoever corruptly (1) alters, destroys, mutilates, or conceals a

record, document, or other object, or attempts to do so, with the

intent to impair the object's integrity or availability for use in an

official proceeding; or (2) otherwise obstructs, influences, or

impedes any official proceeding, or attempts to do so, shall be

fmed under this title or imprisoned not more than 20 years, or both.

18 U.S.C. § 1512(c). The Tuttles next suggest that the City violated 18 U.S.C. § 1512(d)(1):

"Whoever intentionally harasses another person and thereby hinders, delays, prevents, or

dissuades any person from (1) attending or testifying in an official proceeding ... or attempts to

7

This section is titled "Tampering with a witness, victim, or an informant.

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do so, shall be fined under this title or imprisoned not more than one year, or both. Next, they

assert violations of two subsections of 18 U.S.C. § 1513.8 First, under § 1513(b)(1):

Whoever knowingly engages in any conduct and thereby causes

bodily injury to another person or damages the tangible property of

another person, or threatens to do so, with intent to retaliate against

any person for the attendance of a witness or party at an official

proceeding, or any testimony given or any record, document, or

other object produced by a witness in an official proceeding ... or

attempts to do so, shall be fined under this title or imprisoned not

more than ten years, or both.

18 U.S.C. § 1513(b)(1). Second, under 18 U.S.C. § 1513(e):

Whoever knowingly, with the intent to retaliate, takes any action

harmful to any person, including interference with the lawful

employment or livelihood of any person, for providing to a law

enforcement officer any truthful information relating to the

commission or possible commission of any Federal offense, shall

be fined under this title or imprisoned not more than 10 years, or

both.

18 U.S.C. § 1513(e).

The Tuttles' allegations are plainly groundless; obstruction of justice has no relation to

the facts at hand. Here, consistent with her long-term relationship with the Tuttles, Ms. Drukker

contacted them to discuss the status of the relocation of the Tuttle House, after the ZBA had

denied the application for a variance on the Rockland Road site . Ms. Drukker expressed her

view that the Gabby Lane lot might be the only viable alternative. She told them that the public

reaction at the hearing, the project schedule, and the cost of the pending lawsuit might be

impediments to the City' s willingness to consider additional potential sites.

The Tuttles' preliminary allegations - that because the City can act only through its

elected Council, Ms. Drukker misrepresented what the City was going to do - are frivolous. It is

an elementary principal of civics that a city employee acts under the aegis of the municipality's

8

This section is titled "Retaliating against a witness , victim, or an informant.

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governing body and that the authority to make policy decisions rests with the City Council, not

the City Engineer. The Tuttles filed no affidavit that asserts they were misled or confused by

what Ms. Drukker told them she thought the City Council might do. They argue instead that Ms.

Drukker had "apparent authority to "communicate to the Tuttles on behalf of the Defendant

City .... Pls. ' Reply at 2. The Court, however, will not assume that when Ms. Drukker told

the Tuttles what she thought the City Council may do, the Tuttles in fact believed that she

controlled the actions of the City Council or that they could have reasonably misunderstood the

limits of her authority as a City employee.

Similarly, the Tuttles' overriding point - that Ms. Drukker obstructed justice by seeking

to induce them to disassociate themselves from the federal lawsuit - is also frivolous. The City

is a party defendant to complex federal litigation, which centers in part on the Tuttles' home.

The City has the legal authority to take the house by eminent domain, but would prefer not to do

so; instead, according to Ms. Drukker, it seeks to arrive at an agreement with the Tuttles to

relocate the home. While the City was in the process of working with the Tuttles to resolve the

relocation issue, the Tuttles sued it The Tuttles have a perfect legal right to sue the City, but by

the same token, there is nothing illegal, improper, or unethical about the City approaching them

and informing them that its willingness to accommodate their relocation may be affected by the

lawsuit. It is not obstruction of justice for one party to a lawsuit to suggest to another party that

if the lawsuit were resolved, things would be better between them.

True obstruction of justice bears no resemblance to the facts here. See United States v.

Guardiola-Ramirez, Criminal No. 06-006(HL), 2006 U.S. Dist. LEXIS 12659 (D.P.R. Mar. 8,

2006) (indictment alleged that "the defendant met several times with a person involved in an

illegal kickback scheme ... to attempt to influence this person to provide false information to the

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grand jury in violation of 18 U.S.C. § 1512(c)(2)). In United States v. McLeod, 53 F.3d 322

(11th Cir. 1995), the court of appeals concluded that 18 U.S.C. § 1513(b)(1), retaliation against

witnesses, applies in both civil and criminal cases . The court recounted the facts as follows:

While in state prison, Jackie McLeod filed an action, pursuant to

42 U.S.C. § 1983, alleging that Houston County Deputy Sheriff

Joe Watson and others had violated his civil rights. Watson

testified at the ensuing trial. At the conclusion of the presentation

of the evidence, the district judge granted a directed verdict in

favor of Watson and the other defendants. Following the verdict,

McLeod told Watson that as soon as he was released from prison,

he was going to kill him. Watson reported this threat to the district

judge and the Federal Bureau of Investigation. McLeod was

charged with retaliating against a witness in violation of 18 U.S.C.

§ 1513(a)(1).

Id. at 323. As they relate to the City's conduct, described by Ms. Drukker in her affidavit, the

statutory provisions cited by the Tuttles are patently inapposite. The Court concludes that Ms.

Drukker in no way obstructed justice or conspired to obstruct justice under any rational

interpretation of the federal criminal statutes.

3. Duty of Fair Dealing under Memorandum of Agreement

The Tuttles request that the Court sanction the City for acting in bad faith and breaching

the implied covenant of good faith and fair dealing. In so doing, they rely on the implied

covenant under New Hampshire law, citing Seaward Constr. Co. v. Rochester, 383 A.2d 707,

708 (N.H. 1978) ("In every agreement there exists an implied covenant that each of the parties

will act in good faith and deal fairly with the other. ).9 The Tuttles claim the City implied that

"certain of its prospective actions under the MOA would be contingent upon the Tuttles's

9 The Tuttles assume they can contractually enforce the provisions of an agreement they never signed. Even if the

City had held itself to the terms of the MOA, the Court is aware of no law that would allow the Tuttles to enforce the

covenant of good faith and fair dealing in an unexecuted contract.

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relinquishment of their pursuit of lawful remedies .... Pls.' Mot. at 11-12.10 Of course,

despite the Tuttles' allegations, none of this has actually happened. They remain parties to the

lawsuit and the City has not been yet charged with breach of its MOA. Construing this exchange

against the City in the most sinister manner, it amounts to the City telling the Tuttles that if they

do not drop the federal lawsuit, the City may not perform in accordance with the terms of the

MOA. At worst, the City's position, if effected in the future, might be grounds for a breach of

contract action, but it is not grounds for the imposition of judicial sanctions. The merits of such

a cause of action would be questionable, since the contractual covenants of good faith and fair

dealing do not prevent a party from negotiating the dismissal of a related lawsuit.

4. The Court' s Inherent Power to Sanction

Next, the Tuttles allege that the City has abused the litigation process, and they invoke

the Court's "inherent power to sanction a party, citing Chambers v. NASCO, Inc. 501 U.S. 32

(1991). In Chambers, the Supreme Court ruled: "[A] court may assess attorney's fees when a

party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. 501 U.S. at 45-46

(citation and internal quotation marks omitted); see also Pan Am Grain Mfg. Co. v. P.R. Ports

Auth., 295 F.3d 108, 117 (1st Cir. 2002). The Court concludes that the City has not acted in bad

faith, vexatiously, wantonly, or for oppressive reasons and, therefore, will not exercise its

inherent authority to impose sanctions for such conduct

B. The City's Responsive Request for Sanctions against Plaintiffs ' Counsel

The City opposes the Tuttles' motion for sanctions and suggests that the Court should

sanction opposing counsel for filing a frivolous motion under Rule 11. The Court holds in

10 To be precise, Ms. Drukker's Affidavit states: "When I reported [that the ZBA rejected the Rockland Road site]

to the Tuttles, I explained that the City might not want to pursue other lots given the public concerns expressed at

the variance hearing about the expense of acquiring another lot[,] the project schedule[,] and the rising expenses of

the pending litigation. Drukker Aff. ¶ 11. According to Ms. Drukker, he Tuttles responded hat they were

surprised to find out that they were involved in litigation against the City. Id. ¶ 14.

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abeyance any determination as to whether and to what extent it should impose sanctions against

the Tuttles or their counsel for filing this motion." The Court will resolve this issue at the end of

the case; for the present, it will direct its attention to the merits of the lawsuit.

C. Motion to Disqualify Counsel

The Tuttles argue three grounds for their motion to disqualify counsel and strike Ms.

Drukker's affidavit. See Pls. ' Mot. to Disquali. Dovetailing their motion for sanctions, the

Tuttles cite Ms. Drukker's alleged criminal liability as the overall basis for disqualifying the

City's counsel: because "Ms. Drukker could be [] exposed to potential criminal liability, she

"has a significant interest in obtaining effective assistance of counsel. Id. at 1. In addition, the

Tuttles assert that joint representation of the City and its employee is inappropriate because "Ms.

Drukker's truthful testimony could incriminate the City thereby creating an "intolerable

conflict. Id. at 2-3. They cite United States v. RMI Co., 467 F. Supp. 915 (W.D. Pa. 1979), an

inapposite criminal prosecution involving price fixing, in which the court concluded that because

"counsel's joint representation of the Defendant RMI and its employees who will be called as

Government witnesses creates a conflict of interest, joint representation was prohibited to

prevent a Sixth Amendment issue on appeal. Id. at 917.12 Finally, the Tuttles argue that, under

Rule 12(f), the Court should strike the affidavit of Ms. Drukker, as it constitutes an "impertinent

or "scandalous matter. Pls. 'Mot. to Disqualify at 3.

To begin, although not briefed by the parties, the Court notes that the Tuttles' standing to

bring such a motion is questionable. Under some circumstances, a party to a civil action may

" Rule 11 (c) provides that sanctions may be imposed "after notice and a reasonable opportunity to respond. FED.

R. Civ. P. 11(c).

12 In RMI, counsel for RMI insisted on also representing the employees, who had invoked their Fifth Amendment

privilege , but had been granted immunity in order to compel them to testify against RMI. The court concluded that

the clear conflict of interest presented Sixth Amendment implications, and therefore disqualified counsel from

representing the employees who would be called as government witnesses.

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have standing to move to disqualify opposing counsel - particularly, when opposing counsel has

violated rules of professional conduct. See Kevlik v. Goldstein, 724 F.2d 844, 848 (1 st Cir. 1984)

(finding that counsel for the plaintiffs had standing to seek disqualification, relying on the Model

Code of Professional Responsibility, DR 1-103(A), which "clearly requires that an attorney come

forward if he has knowledge of an actual or potential violation of a Disciplinary Rule. ).

Standing to move for disqualification generally originates from an attorney's duty to report

ethical violations committed by another attorney.13 However, courts in this circuit have

cautioned that this procedural maneuver can be used for improper purposes. See Combustion

Eng'g Caribe, Inc. v. Geo P. Reinjes Co., 298 F. Supp. 2d 215, 219 (D.P.R. 2003) ("The risk of

this mechanism being used for tactical or strategic purposes by opposing parties in a litigation

must be weighed by the court as well as the effect of negating chosen attorney. ). Here, the

Tuttles' motion is not on its face, based on any alleged misconduct by the City's counsel.

Rather, the Tuttles express concern as to whether Ms. Drukker is receiving effective assistance of

counsel.

The motion to disqualify fails for several reasons. First, the Tuttles lack standing to raise

such a concern, because the "lack of any injury personal to them is fatal to their standing here.

Schneider v. County of Will, No. 04-2058, 2005 U.S. App. LEXIS 1363, at *5 (7th Cir. Jan. 21,

2005). In addition, the City has alleged that the motion to disqualify amounts to an effort to

13 The First Circuit's approach is echoed in other circuits. See, e.g., Wilson v. Morgan, 477 F.3d 326, 346 (6th Cir.

2007) (noting that the Tennessee Rules of Professional Conduct allow opposing counsel to raise a conflict of interest

question); SchWi Embroidery Workers Pension Fund v. Ryan, Beck & Co., Civil Action No. 91-5433, 1994 U.S.

Dist. LEXIS 2154, at *5-6 (D.N.J. Feb. 23, 1994) (rejecting the contention that only a client or former client affected

by the potential conflict may move for disqualification, and finding standing based on New Jersey's Rules of

Professional Conduct, which require a lawyer to report another attorney's misconduct); but see Shire Labs., Inc. v.

Nostrum Pharms., Inc., Civil Action No. 03-4436 (MLC), 2006 U.S. Dist. LEXIS 51043, at * 12 (D.N.J. July 25,

2006) ("This Court recognizes that a party does not have standing to bring a Motion to Disqualify based on a

material conflict of interest unless the party is either a former or current client. ); Jacobs v. Transocean Entm't, Nos.

95-55804, 95-56762, 1996 U.S. App. LEXIS 27591, at *9-10 (9th Cir. Oct. 22, 1996) (`lI]t is questionable whether

Jacobs and Lawrence should have standing to move to disqualify opposing counsel on the basis that opposing

counsel's joint clients have conflicts with one another. ).

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distract the Court from the purpose of the pending lawsuit, Def. City of Concord's Obj. at 5

(Docket # 115), which could constitute the "tactical or strategic purposes that Combustion

Engineering Caribe cautioned against. Lastly, having already determined that the Tuttles'

allegations of criminal conduct are far-fetched, the Court concludes that the Tuttles' motion for

disqualification lacks a valid premise. The Court denies the motion to disqualify counsel and

motion to strike.

III. CONCLUSION

The Court DENIES Plaintiffs' Motion for Sanctions (Docket # 107) and their Motion to

Disqualify Counsel and Strike Ms. Drukker's Affidavit (Docket # 114); the Court STAYS any

further decision regarding the appropriateness of imposing sanctions against Morton and Carolyn

Tuttle and/or their counsel, Gordon R. Blakeney.

SO ORDERED.

/s/ John A. Woodcock

JOHN A. WOODCOCK, JR.

UNITED STATES DISTRICT JUDGE

SITTING BY DESIGNATION

Dated this 24th day of May, 2007

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