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United States District Court, E.D. Pennsylvania.

ELECTRONIC LABORATORY SUPPLY COMPANY, INC., et al.

v.

MOTOROLA, INC., et al.

CIV. A. No. 88–4494.

July 3, 1990.

Robert LaRocca, Kohn, Savett, Klein & Graf, P.C., 

Harold E. Kohn, Philadelphia, Pa., for plaintiffs.

Jami W. McKeon, Morgan Lewis & Bockius, Philadelphia, Pa., Motorola, Inc.

Patrick W. Kittredge, Kittredge, Kaufman & Donley, 

Philadelphia, Pa., for R. Cullen, R. Hauben & J. 

Wolfson.

MEMORANDUM AND ORDER

HUTTON, District Judge.

*1 Presently before the Court are defendants' 

Motion to Strike Plaintiffs' Amended Pretrial Memorandum, plaintiffs Electronic Laboratory Supply 

Company's (“ELSCO”) and Jack Snyderman's response, and defendants' reply. For the following reasons, defendants' motion is DENIED.

I. FACTUAL BACKGROUND

Defendant Motorola in this action manufactures 

and sells electronic equipment and components, including various integrated circuits, discrete semiconductors, and microprocessor units. For various reasons, a certain number of Motorola's semiconductor 

devices do not meet its quality-assurance standards. 

These below-quality semiconductors are considered 

“scrap material” by Motorola and destroyed in order 

to ensure that only first-quality semiconductors enter 

the market, thereby protecting Motorola's name and 

reputation.

From 1980 to the present, Motorola contracted 

with plaintiff ELSCO to remove and destroy 

Motorola's scrap material. Pursuant to this contract, 

ELSCO purchased the scrap material and agreed to 

transport it from Motorola's facilities, promptly destroy it, and send a Certificate of Destruction within 

30 days of receiving the material.

Believing that ELSCO was not in fact destroying 

the scrap material but was selling it instead, Motorola 

commenced an action against ELSCO, Jack Snyderman, New Jersey Semiconductor, and Robert Hildebrandt raising various claims, including claims for 

trademark violations under the Lanham Act, 15 

U.S.C. §§ 1051–1128. At the same time, Motorola 

obtained an ex parte seizure order from the Court 

pursuant to 15 U.S.C. § 1116.

FN1 After Motorola obtained the ex parte seizure Order, plaintiffs commenced the present action for, inter alia, wrongful 

application of an ex parte seizure order pursuant to 

15 U.S.C. § 1116(d)(11). These actions have been 

consolidated by Order of this Court. ELSCO v. 

Motorola, Inc., No. 88–4494 (E.D.Pa. Sept. 20, 

1989).

Among the defendants named in the present action are Raymond T. Cullen and Ronald B. Hauben, 

who are or were representing Motorola in both the 

present action and the consolidated action against 

ELSCO, Snyderman, New Jersey Semiconductor, 

and Hildebrandt.FN2 In their amended Pretrial Memorandum, plaintiffs name Cullen and Hauben as witnesses to be called at trial. Defendants have now 

moved to strike this amendment on the grounds that 

such an amendment would effectively disqualify 

counsel under Pennsylvania's Rules of Professional 

Conduct. Because the denial of the motion to strike 

would effectively disqualify defense counsel, this 

Court will treat the motion as a motion to disqualify.

II. DISCUSSION

Rule 3.7 of the Pennsylvania Rules of Professional Conduct provides:

(a) A lawyer shall not act as advocate at a trial in 

which the lawyer is likely to be a necessary witness 

except where:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value 

of legal services rendered in the case; or

(3) disqualification of the lawyer would work 

substantial hardship on the client.

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*2 (b) A lawyer may act as advocate in a trial in 

which another lawyer in the lawyer's firm is likely to 

be called as a witness unless precluded from doing so 

by Rule 1.7 or Rule 1.9.

Pa.R.Prof.Cond. 3.7.FN3

The purpose of this rule is to separate the role of 

an attorney as an advocate on one hand and the role 

of a witness to give testimony on the other:

A witness is required to testify on the basis of 

personal knowledge, while an advocate is expected to 

explain and comment on evidence given by others. It 

may not be clear whether a statement by an advocatewitness should be taken as proof or as an analysis of 

the proof.

Pa.R.Prof.Cond. 3.7 comment.FN4

Before this Court addresses the core issue of 

whether Cullen may act as counsel for Motorola, a 

number of preliminary issues may be addressed perfunctorily. First, according to defendants' representations in their memorandum of law, Hauben is identified as “former counsel” in this matter and thus, he 

may be called as a witness under Rule 3.7(b), subject 

to Rules 1.7 and 1.9. Accordingly, defendants' Motion to Strike is denied to the extent that it seeks to 

strike the addition of Hauben as a witness for plaintiff.

Second, an attorney may continue to represent a 

client in an action in which he will be called as a witness up to the actual trial in the case. See, e.g., Culebras Enters. Corp. v. Rivera–Rios, 846 F.2d 94, 99–

101 (1st Cir.1988). FN5 Thus, even if Cullen may not 

act as trial counsel for Motorola or the other defendants, he may continue to represent them up to the 

actual commencement of the trial.

And finally, the attorney-witness rule is inapplicable to attorneys representing themselves pro se. 

See, e.g., Duncan v. Poythress, 777 F.2d 1508, 1515 

n. 21 (11th Cir.1985) (citing O'Neal v. Bergman, 452 

A.2d 337, 344 (D.C.1982)).FN6 Accordingly, even if 

Cullen may not act as trial counsel for Motorola or 

the other defendants, he and Hauben may represent 

themselves even though they will be called as plaintiffs' witnesses.

A. Necessity

Pursuant to Rule 3.7, Cullen should only be disqualified as trial counsel if he is “likely to be a necessary witness....” Rule of Professional Conduct 3.7

(emphasis added). A lawyer who is likely to be a 

necessary witness has been described as one “ ‘who 

has crucial information in his possession which must 

be divulged.’ ” Anderson v. Reliance Standard Life 

Ins. Co., No. 86–3328, slip op. at 4 (E.D.Pa. July 27, 

1988) (quoting Universal Athletic Sales Co. v. American Gym, Recreational & Athletic Equip. Corp., 546 

F.2d 530, 538–39 n. 21 (3d Cir.1976), cert. denied,

430 U.S. 984 (1977)). “Although whether counsel 

will actually testify is not determinative, the necessity 

standard requires more than mere speculation that 

counsel will do so.” Id. (citation omitted).

For a number of reasons, this Court believes that 

Cullen is a necessary witness in this case and should 

be disqualified as trial counsel for Motorola or any 

other defendant except himself in this action and as 

trial counsel for Motorola in the consolidate action.FN7 First, plaintiffs claim that Cullen drafted the 

affidavit of Charles Rawls with the knowledge that 

the affidavit was false. If true, this would be extremely relevant to show bad faith on Cullen's and 

Motorola's part, which, according to defendants, is a 

relevant consideration in determining whether the 

application for an ex parte seizure order was “wrongful.”

*3 Plaintiffs also claim that Cullen and/or Hauben presented the oral application for the ex parte

seizure order and that only they/he can testify as to 

the representations made to the Court since no court 

reporter was present. Again, this is extremely relevant to discover what representations were actually 

made to the Court in order to obtain the seizure order, 

especially since no transcript of the hearing is available.

In addition, since Cullen is a defendant in this 

case, denying plaintiffs the opportunity to call him as 

a witness denies plaintiffs the full opportunity to present their case to the jury. While this Court is hesitant 

to deny defendants their choice of counsel, it is 

equally, if not more, hesitant to deny plaintiffs every 

opportunity to present their case.FN8

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And finally, Cullen raises the affirmative defense 

that his “conduct in this matter is privileged and cannot be the subject of Plaintiffs' claims or injury; alternatively, [his] conduct is immune from these claims.” 

Affirmative Defense 8, Defendants' Answer at 13. 

While Cullen is under no burden to prove this defense, plaintiffs will most likely need to call Cullen to 

the stand in order to establish that this privilege does 

not attach. FN9 An appropriate Order follows.FN10

ORDER

AND NOW, this 2nd day of July, 1990, upon 

consideration of defendants' Motion to Strike Plaintiffs' Amended Pretrial Memorandum, plaintiffs Electronic Laboratory Supply Company's and Jack 

Snyderman's response, and defendants' reply, IT IS 

HEREBY ORDERED that defendants' motion is 

DENIED.

FN1. The Honorable Edmund V. Ludwig 

granted the ex parte seizure Order in that 

case, which was subsequently transferred to 

this Court's calendar by Order dated September 23, 1988.

FN2. Motorola represents that Cullen is present counsel and Hauben is former counsel 

in this and the related action.

FN3. By Order dated May 23, 1990, the 

Eastern District of Pennsylvania amended 

Local Rule of Civil Procedure 14 to provide 

that “[t]he Rules of Professional Conduct

adopted by this Court are the Rules of Professional Conduct adopted by the Supreme 

Court of Pennsylvania....” This reflects the 

fact that the Pennsylvania Code of Professional Responsibility was superseded by the 

Pennsylvania Rules of Professional Conduct.

FN4. The rational behind the lawyer-witness 

rule is further detailed in Ethical Consideration 9 to Canon 5 of the now-superseded 

Code of Professional Responsibility:

Occasionally a lawyer is called upon to 

decide in a particular case whether he will 

be a witness or an advocate. If a lawyer is 

both counsel and witness, he becomes 

more easily impeachable for interest and 

thus may be a less effective witness. Conversely, the opposing counsel may be 

handicapped in challenging the credibility 

of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing 

his own credibility. The roles of an advocate and of a witness are inconsistent; the 

function of an advocate is to advance or 

argue the cause of another, while that of a 

witness is to state facts objectively.

42 Pa.C.S.A. EC 5–9 (Purdon 1987) (superseded by Pennsylvania Rules of Professional Conduct).

FN5. The Court in Culebras Enterprises

concluded that a lawyer-witness could represent a party up to the trial on two grounds. 

First, the Court noted that the concerns surrounding a lawyer-witness “are absent or, at 

least, greatly reduced, when the lawyerwitness does not act as trial counsel, even if 

he performs behind-the-scenes work for the 

client in the same case.” Id. at 100. The 

Court also concluded that the language of 

Rule 3.7 suggested that this was the appropriate result since it only proscribed a lawyer-witness from acting as an “advocate at a 

trial.” Id. at 101.

FN6. While the Court's conclusion in Duncan that the lawyer-witness rule was inapplicable to pro se attorneys was based on 

Ethical Consideration 9 to Cannon 5 of the 

ABA Model Code of Professional Responsibility, this Court believes that the same result is appropriate for Rule of Professional 

Conduct 3.7.

FN7. Defendants spend a considerable portion of their briefs attacking plaintiffs' 

claims against Cullen. Such attacks are inapposite in the present motion and should be 

or should have been raised in a motion attacking the substance of the claims.

FN8. It is also relevant to note that Cullen 

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ticipated this problem from the start.

FN9. As a final note, this Court believes that 

defendants will have little difficulty finding 

alternative trial counsel at Morgan, Lewis & 

Bockius—one of Philadelphia's largest law 

firms—who is able to represent defendants 

under Rule 3.7(b).

FN10. To the extent that defendants seek to 

strike plaintiffs' amended pretrial memorandum on the grounds that it lists furnace records that plaintiffs intend to introduce, defendants' motion to strike is likewise denied.

E.D.Pa.,1990.

Electronic Laboratory Supply Co., Inc. v. Motorola, 

Inc.

Not Reported in F.Supp., 1990 WL 96202 (E.D.Pa.)

END OF DOCUMENT

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United States District Court,

D. New Jersey.

Audrey OSWELL, Plaintiff,

v.

MORGAN STANLEY DEAN WITTER & CO., 

INC., et al., Defendants.

Civil No. 06-5814 (JBS).

Aug. 22, 2007.

Charles A. Ercole, Esq., Lynn A. Collins, Esq., 

Klehr, Harrison, Harvey, Branzburg & Ellers, LLP, 

Cherry Hill, NJ, for Plaintiff, Audrey Oswell.

A. Ross Pearlson, Esq., Jennifer Maria Rosa, Esq., 

Sills, Cummis, Epstein & Gross, P.C., Newark, NJ, 

for Defendants, Morgan Stanley and Venture Holdings, Inc.

OPINION

SIMANDLE, District Judge.

*1 This matter is before the Court upon the motion of Defendant Morgan Stanley Dean Witter and 

Venture Holdings, Inc. (“Defendant”) to disqualify 

counsel for Plaintiff Audrey Oswell (“Oswell”) pursuant to New Jersey Rule of Professional Conduct 3.7

(“RPC 3.7”). RPC 3.7 can be used to disqualify an 

attorney on the grounds that the attorney will be a 

witness at trial. In this matter, Defendant seeks to 

disqualify four attorneys from the law firm representing Oswell (Klehr, Harrison, Harvey, Branzburg & 

Ellers, LLP) (the “Klehr Law Firm”) but not the 

Klehr Law Firm itself.FN1 Because members of the 

Klehr Law Firm Charles Ercole, Esq. and Lynn A. 

Collins, Esq. had a limited participation in earlier 

conversations surrounding this dispute, and other 

witnesses may be available to Defendant if it needs to 

establish the contents of those discussions at trial, 

Defendant has failed at the present time, to meet its 

burden of proving that either Ercole and Collins are 

“likely to be a necessary witness” at trial (as required 

by RPC 3.7(a)). Thus, the Court will deny Defendant's motion to disqualify as to Ercole and Collins for 

the reasons expressed below.

FN1. Defendant does not seek to disqualify 

the entire Klehr law firm. In addition, according to counsel for Oswell, attorneys Ira 

Gubernick and Leonard Klehr are members 

of the Klehr Law Firm's corporate and transactional practices and will not appear as 

counsel in this matter. Accordingly, as counsel for Defendant conceded at oral argument, no issue exists as to Mr. Gubernick 

and Mr. Klehr, since neither is serving, or 

will serve, as trial counsel for Oswell.

I. BACKGROUND

This matter involves two consolidated cases. The 

first is Oswell v. Morgan Stanley Dean Witter & Co. 

et al. (Civil No. 06-5814), which arises out of discussions Oswell allegedly participated in with Defendant 

relating to the purchase of certain property in Atlantic 

City (the “Property”) and the contemplated development of that Property into a casino. Oswell claims 

that she entered into a deal with Defendant in which 

Defendant would employ her as the chief executive 

officer of a new casino that she and Defendant would 

develop on the Property. Oswell claims that (1) Defendant's promise purportedly induced her to resign 

from her then current employment as chief executive 

officer of Resorts International, Inc. (“Resorts”) and 

(2) that she provided contacts and information to 

Morgan Stanley and negotiated the purchase of the 

Property on Defendant's behalf.

The second action is Resorts Int'l Hotel, Inc. v. 

Morgan Stanley Dean Witter & Co. (Civil No. 07-

105) in which plaintiff Resorts alleges that Defendant 

induced Oswell, during her tenure as chief executive 

officer of Resorts, to divert the opportunity to purchase the Property away from Resorts and for Defendant's behalf. Further, Resorts argues that Defendant induced Oswell to: (1) use her knowledge, experience and contacts in the Atlantic City casino industry to negotiate a purchase price of the Property; (2) 

resign from Resorts and (3) secure a release from 

Resorts under false pretenses. In this action, Defendant brought a third-party complaint against Oswell, 

asserting claims for indemnification, contribution and 

fraud (in the event Defendant is held liable to Resorts) arising out of representations Oswell made to 

Defendant, through her attorneys, that she had presented to Resorts the opportunity to develop the 

property and that they had rejected it. Defendant and 

Oswell ultimately stipulated that the third-party complaint should be dismissed without prejudice on July 

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17, 2007. [Docket Item No. 31, 36.]

*2 Defendant claims that (1) the conversations 

between Oswell's attorneys, on the one hand, and 

Defendant's attorneys, on the other, relating to the 

legal impediments to the “deal” between Oswell and 

Morgan Stanley and (2) what, if anything, Oswell 

told Resorts regarding the opportunity to purchase the 

Property and what her attorneys told Defendant's 

counsel regarding these discussions, are highly material to the claims and defenses herein. Specifically, 

Defendant claims:

• Oswell's attorneys (Charles Ercole, Lynn Collins, 

Ira Gubernick and Leonard Klehr) participated in 

multiple telephone conversations and email exchanges relating to the topics with various attorneys from the law firm of Shefsky & Froelich (the 

“Shefsky firm”) who were acting on behalf of Defendant in connection with the purchase of the 

Property;

• On February 14 and 16, 2006, Ercole and Collins 

participated in two half-hour, substantive conference calls with the Shefsky firm where the parties 

discussed “numerous legal impediments” to the 

deal arising due to Oswell's then-current employment with Resorts. (Def.'s Reply at 3.) According 

to lawyers at the Shefsky law firm, on February 14, 

Ercole and Collins (among others) represented that 

Oswell had advised a high-ranking executive at 

Resorts about the Property and that Resorts was not 

interested in purchasing the Property.

• On February 16, 2006, Ercole and Collins participated in a conference call and argued with representatives of the Shefsky firm that Morgan Stanley 

would not be at risk of a tortious interference action should it move ahead with the deal.

Oswell presents a version of events (and the role 

of Oswell's counsel) that is considerably different 

than the one presented by Morgan Stanley. For example:

• According to the affidavit by Lynn Collins, Collins and Ercole participated in one telephone call 

with attorneys for Defendant, which occurred on 

February 14, 2006. The call was “brief” and “only 

involved a very general and cursory discussion of 

New Jersey case law. on the issue of tortious interference.” (Pl.'s Opp. Br. at 8.);

• After the call, Collins sent an email to a Shefsky 

attorney forwarding a few general case cites on 

New Jersey tortious interference and non-compete 

agreements under New Jersey law;

• Aside from this exchange, “at no time prior to the 

filing of the Complaint were either Mr. Ercole or 

Ms. Collins ever involved in (or witness to) any 

communications with [Defendant] or its attorneys 

related to the status of the agreement between 

[Oswell] and [Defendant], the terms of the agreement, [Oswell's] discussions with Resorts' management....”

(Pl.'s Br. at 9.)

II. DISCUSSION

A. Legal Standard

A court may disqualify an attorney where it is 

necessary to enforce the court's disciplinary rules. See 

Kaselaan & D'Angelo Assocs., Inc. v. D'Angelo, 144 

F.R.D. 235, 243 (D.N.J.1992); Sherwood Group, Inc. 

v. Rittereiser, No. 90-2414, 1991 U.S. Dist. LEXIS 

7147 (D.N.J. May 20, 1991); see In re Snyder, 472 

U.S. 634, 643 (1985)(federal courts have inherent 

authority to discipline attorneys). Here, the relevant 

disciplinary rule is RPC 3.7(a) which states:

*3 (a) A lawyer shall not act as advocate at a trial 

in which the lawyer is likely to be a necessary witness except where:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of 

legal services rendered in the case; or

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

RPC 3.7; see also Main Events Prods. v. Lacy,

220 F.Supp.2d 353, 355 (D.N.J.2002)(RPC 3.7(a) is a 

prohibition against an attorney-witness acting as an 

“advocate at trial.”) The purpose of RPC 3.7(a) is “to 

prevent a situation in which at trial a lawyer acts as 

an attorney and a witness, creating the danger that the 

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factfinder (particularly if it is a jury) may confuse 

what is testimony and what is argument....” Main 

Events Prods., 220 F.Supp.2d at 357. An attorney is 

“likely to be a necessary witness only where he has 

crucial information in his possession which may be 

divulged.” Garza v. McKelvey, No. 89-895, 1991 

U.S. Dist. LEXIS 311, *6 (D.N.J. Jan. 2, 1991). FN2

FN2. Under Main Events Prods., Judge 

Debevoise held that the phrase “acts as advocate at trial” as set in the RPC 3.7, applies 

only to an attorney's participation at trial before a jury and would not serve to bar an attorney from participating in pretrial proceedings. Main Events Prods., 220 F.Supp.2d at 

357 (“In light of the clear language of the 

Rule, [the attorney] should not have been 

disqualified from participating in pre-trial 

matters. This construction of RPC 3.7 not 

only is in accord with the plain language of 

the Rule, it also is consistent with its intent.”) As discussed in Section III.C., infra,

this Court agrees that RPC 3 .7 is a prohibition against acting as an advocate at trial, 

not in pretrial proceedings. The inherent authority of the Court, or other Rules of Professional Conduct, may serve to bar counsel 

from pretrial proceedings under circumstances not present here.

Generally speaking, motions to disqualify are 

viewed with disfavor as disqualification is a remedy 

with broad implications. See Carlyle Towers Condo. 

Ass'n v. Crossland Sav., 944 F.Supp. 341, 345 

(D.N.J.1996); Spinello Cos. v. Metra Indus., No. 05-

5075, 2006 U.S. Dist. LEXIS 41875 (D.N.J. June 22, 

2006). The party seeking disqualification bears the 

burden of showing that continued representation by 

the lawyer would violate the disciplinary rules. See 

Kroungold v. Triester, 521 F.2d 763, 766 (3d 

Cir.1975).

In addition, the party seeking to disqualify an attorney must do more than simply make representations that a lawyer is a necessary witness for the attorney to be disqualified. J.G. Ries & Sons, Inc. v. 

Spectraserv, Inc., 384 N.J.Super. 216, 230 

(App.Div.2006)(“Such a mere representation, however, does not satisfy the threshold requirements of 

RPC 3.7, which specifies a likelihood that a lawyer 

will be a necessary witness.”) Indeed, the party seeking to disqualify must put forth evidence that establishes the likelihood that the attorney will be a necessary witness at trial and if it is unclear from the record as to whether or not the attorney's testimony is 

necessary, the motion should be denied. See Host 

Marriott Corp. v. Fast Food Operators, Inc., 891 

F.Supp. 1002, 1010 (D.N.J.1995).

B. Disqualification as Trial Counsel

Defendant first argues that Ercole and Collins 

should be disqualified from serving as trial counsel 

because they are likely to be necessary witnesses in 

this matter. According to Defendant, Oswell's counsel have information regarding (1) what, if any, terms 

were discussed and/or agreed to between Defendant 

and Oswell relating to the agreement; (2) whether 

any agreement was in fact entered into between 

Oswell and Defendant; (3) what Oswell and counsel 

told Resorts regarding the Property and what Resorts' 

response was; and (4) what Oswell and/or her counsel told Defendant and the Shefsky firm about what 

Oswell told Resorts about the Property and Resorts' 

response. As an example, Defendant contends that 

counsel has personal knowledge relating to the drafting and sending of the term sheet to Defendant and 

the discussions of the term sheet that are directly related to the issue of whether Oswell and Defendant 

had ever agreed to any terms of a purported contract.

*4 Oswell counters by arguing that, under New 

Jersey law, an attorney can be excluded under RPC 

3.7 only if his or her testimony is shown “to be truly 

necessary.” (Pl.'s Opp. Br. at 12.) Oswell argues that, 

in this matter, neither Ercole or Collins have any relevant or material evidence or testimony that would 

make them “necessary” witnesses at trial for several 

reasons. First, according to Oswell, neither was present during any substantive communications or negotiations between Oswell and Defendant. Thus, neither 

Ercole nor Collins have any knowledge of either (1) 

what Oswell's attorneys were told by Defendant's 

attorneys related to Oswell's inability to enter into 

any deal or (2) what Oswell's attorneys told Defendant's attorneys relating to Oswell's alleged presentation of the property to Resorts. Second, according to 

Oswell, to the extent testimony about the February 

14, 2006 conversation (regarding New Jersey law 

relating to tortious interference) between counsel 

becomes relevant to the case, Ercole's and Collins' 

testimony would be entirely duplicative and cumulative of other testimony or evidence that is available. 

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Indeed, Mr. Gubernick (Klehr Harrison's transactional attorney) or attorneys from the Shefsky law firm 

are also available as witnesses to testify regarding the 

contents of the February 14, 2006 call.

The Court holds that Defendant has failed meet 

its burden of showing that Ercole and Collins are 

likely to be necessary witnesses at trial. Under New 

Jersey law for purposes of RPC 3.7, a witness is “truly necessary” if there are no documents or other witnesses that can be used to introduce the relevant evidence. See e.g., J.G. Reis & Sons, Inc., 384 

N.J.Super. 216 (App.Div.2006) (denying motion to 

disqualify under RPC 3.7 where documents could be 

introduced by the testimony of an individual who 

received the letter, rather than the attorney). Indeed, 

where knowledge possessed by an attorney is equally 

possessed by other witnesses, disqualification is not 

appropriate. See Spinello Cos., 2006 U.S. Dist. LEXIS 41875 at* 10. Defendant has not established that 

evidence relevant to Oswell's conversations with Resorts or the negotiations between Oswell and Defendant rest solely within the possession of Ercole or Collins that would make either of them the only witness, 

or even the primary witness, available to testify regarding these matters. Instead, their testimony is likely to be duplicative as counsel for Defendant (John 

Kennedy from the Shefsky law firm) or Oswell (Gubernick or Klehr) can testify regarding the same facts 

as Oswell and Collins. Indeed, Defendant's argument 

about hearing facts from Oswell's own attorney regarding the February 2006 conversations is unavailing as Gubernick (rather than Ercole and Collins) 

would be available to testify as a witness. Also, to the 

extent either attorney is shown to possess unique evidence for trial, it is possible that disqualification may 

be avoidable through a stipulation of what that testimony would be. Consequently, without more evidence as to Ercole's and Collins' necessity as witnesses,FN3 the Court finds that their continuing as counsel 

for Oswell will not violate RPC 3.7(a) and, therefore, 

the Court will not deprive Oswell of her choice of 

counsel.FN4

FN3. Defendant is free to obtain further discovery of the relevant knowledge of Ercole 

and Collins in the disputed conversations 

with Defendants' counsel. While Ercole and 

Collins are not disqualified under RPC 3.7, 

neither are they immunized from discovery 

of their relevant, non-privileged conversations bearing upon the substance of Oswell's 

claims.

FN4. Furthermore, Plaintiff has made her 

choice between having Ercole and Collins as 

her trial attorneys or as her trial witnesses. 

In preserving their roles as her trial attorneys, Plaintiff has foregone the opportunity 

to adduce their presumably favorable trial 

testimony. In the absence of their discovery 

depositions, the full contours of their prospective testimony is not presently known. 

But upon the present record, the Court is satisfied that denial of disqualification does not 

confer either an undue advantage to Plaintiff 

or an unfair prejudice upon Defendant.

C. Disqualification from Pre-trial Matters

*5 Defendant next argues that RPC 3.7 prevents 

Ercole and Collins from serving as Oswell's attorneys 

even in pre-trial matters. Defendant cites cases from 

outside of this jurisdiction holding that “disqualification from pretrial matters may be appropriate ... 

where that activity includes obtaining evidence 

which, if admitted at trial, would reveal the attorney's 

dual role [of witness and attorney].” Lowe v. Experian, 328 F.Supp.2d 1122, 1126 (D.Kan.2004)(internal 

quotations omitted)(interpreting Kansas RPC 3.7

which contains identical language to New Jersey 

RPC 3.7); see also World Youth Day, Inc. v. Famous 

Artists Merchandising Exchange, Inc., 866 F.Supp. 

1297 (D.Colo.1994). Defendant argues that Ercole 

and Collins are likely to be necessary witnesses in 

both the Oswell and Resorts matters and their participation in depositions-similar to as if they testified at 

trial and served as trial counsel-is likely to create the 

potential for jury confusion that RPC 3.7 is designed 

to prevent. In her opposition, Oswell argues that, 

under Main Events, Ercole and Collins should not be 

disqualified from pre-trial matters because RPC 

3.7(a) is directed only at disqualifying counsel from 

serving as trial counsel. See Main Events, 220 

F.Supp.2d at 356-57.

The Court agrees with Oswell. In Main Events,

Judge Debevoise specifically rejected the notion that 

RPC 3.7(a) also serves to disqualify an attorney from 

pre-trial proceedings, holding that “RPC 3.7(a) is a 

prohibition only against acting as an advocate at a 

trial,” and “RPC 3.7 does not apply to pre-trial proceedings.” Id. at 357 (internal quotations omitted). 

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Indeed, the court in Main Events stated:

The analysis of RPC 3.7 in [ Freeman v. Vicciarelli, 827 F.Supp. 300 (D.N.J.1993) ] is predicated on 

various New Jersey cases ... which relied on older 

versions of the advocate witness rule found in the 

Disciplinary Rules of the Code of Professional Responsibility.

RPC 3.7(a) is a prohibition only against acting as 

an “advocate at a trial....” The conclusion drawn in 

Freeman that RPC 3.7 applies to all pre-trial activity is at odds with the clear language of RPC 3.7.

While there is no clear authority from the New Jersey Supreme Court regarding this issue, a number 

of other courts interpreting RPC 3.7 have concluded that an attorney who will testify at trial need not 

be disqualified from participating in pre-trial matters.... This construction of RPC 3.7 not only is 

in accord with the plain language of the Rule, it 

also is consistent with its intent. The Rule is designed to prevent a situation in which at trial a 

lawyer acts as an attorney and as a witness, creating the danger that the fact finder (particularly if it is a jury) may confuse what is testimony 

and what is argument, and otherwise creating 

an unseemly appearance at trial. Limiting the 

disqualification to advocacy at trial achieves these 

objectives and at the same time respects a client's 

right to be represented generally by an attorney of 

his choice.

*6 Id. 356-57 (emphasis added) (citations omitted).

Thus, this Court will adhere to plain language of 

RPC 3.7 and follow the holding of Main Events in 

concluding that Ercole and Collins can also participate in pre-trial matters. Regardless of whether 

Ercole and Collins are disqualified as trial counsel, 

Ercole and Collins should not be disqualified from 

pre-trial matters under New Jersey law interpreting 

RPC 3.7(a).

III. CONCLUSION

For the reasons set forth in this Opinion, this 

Court will deny Defendant's motion to disqualify 

Oswell's counsel as to Charles Ercole and Lynn Collins. If circumstances change, this motion for disqualification may be renewed prior to the final pretrial 

conference.

The accompanying Order is entered.

D.N.J.,2007.

Oswell v. Morgan Stanley Dean Witter & Co., Inc.

Not Reported in F.Supp.2d, 2007 WL 2446529 

(D.N.J.)

END OF DOCUMENT

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Page 2

Not Reported in F.Supp., 1991 WL 3302 (D.N.J.)

(Cite as: 1991 WL 3302 (D.N.J.))

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

Only the Westlaw citation is currently available.

United States District Court, D. New Jersey.

David C. GARZA and Diane M. Garza, Plaintiffs,

v.

Patricia McKELVEY, Defendant.

Civ. No. 89–895 (CSF).

Jan. 2, 1991.

OPINION

CLARKSON S. FISHER, District Judge.

*1 Before the court is a motion by defendant, Patricia McKelvey, against plaintiff, David Garza, to disqualify

him from acting as trial counsel in this case. The defendant also brings a motion to bar plaintiffs from pursuing rescission as a remedy. For the following reasons, defendant's motion to disqualify is denied and her motion to bar 

rescission is granted.

Facts

Defendant Patricia McKelvey is a professional horse trainer and the manager of a stable located in Whitehouse 

Station, New Jersey. She is paid a small salary and in lieu of additional monies receives the free use of certain stalls. 

She also engages in the parttime occupation of buying and selling show horses which she keeps in these stalls.

Defendant alleges that she purchased Gipper in September 1986 at an auction in Ohio from Skip Fletcher. She 

further alleges that during the two years she owned Gipper, she regularly trained him and brought him to approximately ten horse shows where he successfully competed as a hunter, which is a type of jumping competition for 

show horses.

In March 1988, plaintiff Diane Garza came to Lakefield with her agent, James Wray, to look at certain show 

horses which defendant had for sale. Plaintiff claims she told defendant that she wanted a quiet, amateur's hunter. 

Plaintiff rode several horses which defendant showed her and was also videotaped while riding these horses. After 

reviewing the video tapes and allegedly being informed Gipper was quiet and well mannered, plaintiff and Wray 

decided plaintiff should purchase defendant's horse, Gipper. Plaintiff paid defendant $13,500.00 and paid Wray 

$1,350.00 for his services.

Plaintiffs brought Gipper back to their home in Texas but soon became dissatisfied with his temperament and 

abilities. Plaintiffs claim that the horse was very nervous, easily spooked and knew very little about jumping, a trait 

McKelvey had said Gipper displayed. In addition, the horse immediately displayed an extremely dangerous, twisting 

buck which plaintiffs videotaped. After repeated failed attempts to obtain relief from defendant, plaintiffs and their 

agent, Wray, reached an agreement whereby he would board Gipper at his farm in Pennsylvania, at his expense, 

until a solution could be reached. Finding none, Wray sent Gipper to defendant's place of business. Defendant alleges that there was some type of an agreement whereby she had no obligation but would try to sell Gipper or replace 

him and would charge board for the time Gipper was with defendant. On December 15, 1988, defendant allegedly 

demanded payment of her board bill which plaintiffs failed and refused to do. On March 7, 1989, defendant then 

notified plaintiff of the status of their board bill and again demanded action. Plaintiff again took no steps to pay defendant's board bill or to have Gipper removed from defendant's farm and return to Wray or to plaintiff in Texas.

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In a letter dated October 26, 1989, plaintiffs were notified that defendant's board fees had reached the point 

where defendant could no longer afford to keep Gipper and that Gipper would be sold at public auction on November 13, 1989, pursuant to New Jersey statute. On November 8, 1989, at plaintiffs' request, a conference call between 

the parties and Judge Wolfson occurred. Defendant alleges that the auction was discussed during this conference but 

plaintiffs nonetheless acquiesced to the auction which was conducted as scheduled on November 13, 1990.

*2 On March 13, 1989, plaintiffs filed an original complaint which sought actual and punitive damages arising 

from breach of contract, common law fraud and consumer fraud. Defendant answered and counterclaimed for the 

expenses she incurred in boarding Gipper after plaintiffs abandoned him at her farm. As a result of defendant's auction of Gipper, plaintiffs filed a first amended complaint on or about March 6, 1990, which included an additional 

count to set aside the auction. On October 11, 1990, the Honorable Freda L. Wolfson, United States Magistrate, held 

a pretrial conference attended by attorney Robert Golden for defendant and an attorney from Mr. Nizolek's firm for 

plaintiff. At that time plaintiff David Garza's intention to be both trial counsel and a witness, and defendants' objections thereto were discussed. Judge Wolfson ordered plaintiff to notify the court by October 31, 1990, as to whether 

he intended to participate a trial.

In a letter of October 25, 1990, plaintiff David Garza notified the court that he intended to act as lead counsel 

and attorney and would not testify to any material or disputed facts. By way of letter dated October 31, 1990, defendant repeated her objections to Mr. Garza being trial counsel since defendant will be calling him as a witness. By 

way of letter dated November 2, 1990, Judge Wolfson instructed defendant to file the within motion. This motion 

seeks to disqualify David Garza as trial counsel.

Analysis

I

In general, the standards of professional conduct prescribed for lawyers practicing in the federal courts are governed by federal disciplinary rules. International Business Mach. corp. v. Levin, 579 F.2d 271, 279 n. 2 (3d 

Cir.1978). Local Rule 6 of this court has adopted the Rules of Professional Conduct of the American Bar Association as revised by the New Jersey Supreme Court, subject to modifications by federal statute, regulation, court rule 

or decision of law. Defendants' motion will be evaluated accordingly.

Rule of Professional Conduct 3.7 provides:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except 

where:

(1) The testimony relates to an uncontested issue;

(2) The testimony relates to the nature and value of legal services; or

(3) Disqualification would work substantial hardship on the client.

This court may disqualify attorneys when necessary to enforce the disciplinary rules it has adopted. In re 

Snyder, 472 U.S. 634 (1985); United States v. Miller, 624 F.2d 1198, 1200–01 (3d Cir.1980).

The party seeking to have a counsel disqualified—defendant, in this case—bears the burden of establishing that 

continued representation would contravene the Professional Code. Kroungold v. Triester, 521 F.2d 763, 766 (3d 

Cir.1975) (movants failed to specify in what respect counsel's testimony would violate rules); Commercial Credit 

Business Loans, Inc. v. Martin, 590 F.Supp. 328, 335 (E.D.Pa.1984) (party seeking disqualification must make a 

clear showing that continued representation would be impermissible). In addition the court should resolve all doubts 

as to the existence of a rules violation in favor of disqualification. International Business Mach. Corp., 579 F.2d at 

Case 2:11-cv-03671-WHW-MCA Document 33-1 Filed 05/04/12 Page 12 of 48 PageID: 398
283. Further, the Third Circuit has emphasized the importance of avoiding not only actual professional misconduct, 

but the mere appearance of impropriety as well. Akerly v. Red Barn System, Inc, 551 F.2d 539, 544 (3d Cir.1977).

*3 For purposes of rule 3.7, an attorney is likely to be a necessary witness only where he has crucial information 

in his possession which may be divulged. Martin, 590 F.Supp. at 335. To make a determination of whether Garza 

has crucial information, this court must evaluate what plaintiffs need to prove to prevail. The bulk of plaintiffs' 

claims arise from the sale by defendant of Gipper to the plaintiff Diane Garza: (1) breach of contract and common 

law; (2) fraud; and (3) New Jersey Consumer Fraud. The claim of conversion arising from the auction is the only 

claim not connected to the original contractual transaction.

As to the breach of contract claim, defendant argues that she will have to call David Garza to testify to negotiations of the letter agreement between Garza and Wray on June 30, 1988. Defendant deems this necessary as she will 

be arguing that this agreement constituted a ratification of the sale of “Gipper” and thus he must be disqualified as 

counsel. The court finds this argument unpersuasive. Defendant has failed to meet her burden of showing that Garza's representation is impermissible. First, no jury is present to be confused by Garza's dual advocate—witness status. Second, as to himself, Garza is a pro se litigant, and pro se litigants routinely testify at trial. Third, as to his representation of his wife, defendant's claims are tenuous at best. Plaintiffs have stated that David Garza need not testify to prove their case and this court agrees. When an attorney's testimony is unnecessary and only defendant seeks to 

have him testify, he will only be precluded from doing so if his testimony would be prejudicial to his client. Saber v. 

Finance America Credit Corp., 1986 W.L. 1553, at p. 6 (E.D.Pa.) Further, the rule was not designed to permit a 

lawyer to call opposing counsel as a witness and thereby disqualify him as counsel. Zions First Nat'l Bank v. United 

Health Clubs, Inc., 505 F.Supp. 138 (E.D.Pa.1981). This court thus finds that defendant's motion must be denied.

II

Defendant also seeks to have this court bar rescission as an available remedy for plaintiffs. Although it is true 

that plaintiffs did not plead rescission, this court does not rule upon this ground. Rather, even if plaintiffs had pled 

rescission, they would not be entitled to this remedy as a matter of law. Rescission is an equitable remedy that is 

available only in limited circumstances. To grant rescission, the court “must be able to return the parties to the 

ground upon which they originally stood.” Hilton Hotel Corp. v. Piper Co., 214 N.J.Super 328, 336 (Ch.Div.1986). 

An attempt to return these parties to the positions they held before the original horse sale is impossible because Gipper was auctioned by defendant. Accordingly, this court grants defendant's motion and forecloses plaintiffs from 

proceeding with the rescission claim at trial. An order accompanies this opinion. No Costs.

ORDER

This matter having been opened to the Court by Robert H. Golden, Esq., attorney for defendant, by way of Notice of Motion; and the Court having considered the papers filed in support of and in opposition to defendant's requested relief, and good cause having been shown,

*4 IT IS on this 2nd day of January, 1991,

ORDERED, that plaintiff David Garza may act as trial counsel in this matter; and it is further

ORDERED, that plaintiffs may not proceed at trial on the issue of rescission of the subject contract.

D.N.J.,1991.

Garza v. McKelvey

Not Reported in F.Supp., 1991 WL 3302 (D.N.J.)

END OF DOCUMENT

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Only the Westlaw citation is currently available.

UNPUBLISHED OPINION. CHECK COURT

RULES BEFORE CITING.

Superior Court of New Jersey,

Appellate Division.

WELLINGTON PLACE CONDOMINIUM ASSOCIATION, Plaintiff,

v.

Marie CARTY, Defendant–Appellant,

and

Henry Hammond, Defendant–Respondent,

and

Lauren Carty, Property Maintenance Associates,

Inc., a New Jersey Corporation, Christopher Reid,

Amboy National Bank, Commerce Bank, n/k/a TD

Bank, N.A., Wachovia Bank, N.A., Merrill Lynch

or Merrill Lynch, NMTC Corporation, Bank of

America, f/k/a Fleet Bank, Community Association

Underwriters of America, Inc., Continental Casualty Company, Zurich American Insurance Company, St. Paul Fire & Marine Insurance Company,

Quincy Mutual Fire Insurance Company, Travelers

Casualty & Surety Company, Greater New York Insurance Company, Creative Insurance Services,

Inc., t/a Creative Agency Group, Jacobson, Goldfarb & Scott, Inc., t/a JGS Insurance Agency and

Lubowicki Insurance Agency, Defendants.

Argued June 8, 2011.

Decided June 30, 2011.

On appeal from the Superior Court of New Jersey,

Law Division, Monmouth County, Docket No.

L–4020–08.

Edwin R. Matthews argued the cause for appellant

(Bourne, Noll & Kenyon, attorneys; Mr. Matthews,

on the briefs).

Andrew T. Walsh argued the cause for respondent

(Chamlin, Rosen, Uliano & Witherington, attorneys; Charles J. Uliano, of counsel; Mr. Walsh, on

the brief).

Before Judges PAYNE and BAXTER.

PER CURIAM.

*1 By leave granted, defendant Marie Carty

(Marie) FN1 appeals from a January 7, 2011 Law

Division order that disqualified her attorney, Edwin R. Matthews, and his firm Bourne, Noll &

Kenyon, from representing her in the present matter

based upon the judge's conclusion that Matthews

had a conflict of interest. We reverse.

FN1. We designate Marie Carty by her

first name to differentiate her from her

daughter, Lauren Carty, who is also a defendant.

I.

The judge's conclusion that Matthews's disqualification was required arises from a matter

having its genesis in 2004. The question before us

is whether Matthews's representation of Henry

Hammond in 2004 bars Matthews from representing Marie in 2010, in light of the fact that Hammond and Marie participated in a real estate transaction in 2004 during which Matthews represented

Hammond. Hammond and Marie are co-defendants

in the present matter.

In August 2004, Matthews was retained to represent Hammond, as well as Lauren Carty and

Christopher Reid, who was Lauren's husband, in

connection with their purchase of a residential

property in Little Silver. The total purchase price

was $555,000. Although all three applied for the

$500,000 mortgage, the mortgage was issued solely

in Hammond's name, because he was the only person qualified. Although the original contract purchasers were Hammond, Lauren and Reid, the title

insurance company insisted that only Hammond

take title to the property because he was the only

person named on the mortgage. Hammond's purPage 1

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chase of the Little Silver property closed on

September 15, 2004, with Matthews as his attorney.

At a hearing conducted on Hammond's motion

to disqualify Matthews, Hammond testified that the

only time he and Matthews met concerning the

2004 real estate transaction was at the closing that

took place in Florham Park, at which Marie was

also present. According to Hammond, he did not

learn that he would be the sole purchaser of the

property until Marie told him so in the car on the

way to Matthews's office. Matthews was not

present in the car.

Hammond contradicted himself on the question

of whether Marie repeated that information in Matthews's presence. Regardless of when he first

learned that he would be the sole party on the mortgage, and whether Matthews was present during

Hammond's discussion of the subject with Marie,

Hammond does not contend that he provided any

confidential information to Matthews during the

real estate transaction involving the Little Silver

property. Matthews did, however, review the closing documents with him, and acted as the settlement agent.

We now describe the relevant facts concerning

the present litigation. In 1986, Marie served as the

property manager for the Wellington Place Condominium Association (Association), an entity

whose membership consists of condominium owners at One Wellington Place in Aberdeen. When

Marie began her service as property manager, she

was an employee of Wellington Place; however in

2000 or 2001, she opened her own property management firm known as Property Maintenance Associates, Inc. (PMA), through which she supplied

property management services to the Association.

While serving as the on-site property manager for

the Association, her duties included collecting

maintenance fee payments, hiring contractors and

paying the bills submitted by contractors and

vendors. In 2001 or 2002, Marie assigned to her

daughter Lauren the responsibilities of on-site manager, at which time Lauren took over the duties previously performed by Marie.

*2 Beginning in August 2006, contractors

began contacting members of the Association's

Board of Trustees regarding invoices they had submitted that had remained unpaid for a considerable

period of time. In September 2006, the pool contractor notified a Board member that when he received checks from PMA in payment for services

rendered, there were insufficient funds in the Wellington Place account to cover the amount of the

checks.

Also in September 2006, an employee of

Brown & Brown Insurance contacted Board member Artie Martino to report that the premises liability insurance issued by Brown & Brown to the Association was in danger of lapsing because the

premium remained unpaid. Brown & Brown advised Martino that Lauren had provided various excuses for the lack of payment, ranging from problems with the mail, to the bank having made a wire

transfer to the wrong account number.

Martino confronted Marie about these financial

irregularities, directed her to attend the next Board

meeting on September 23, 2006 and to bring with

her all of the financial records of the Association

for the past year. At the Board meeting, neither

Marie nor Lauren provided the information Martino

had requested.

His suspicions heightened, Martino, along with

Board member, Pat Dyer, reviewed the Association's financial records, and discovered numerous

financial improprieties, including bank statements

showing that Lauren had made unauthorized cash

withdrawals from the Association's checking account, and had, without permission, obtained credit

cards in the name of Wellington Place and was using them for personal shopping. Dyer and Martino

also discovered that the former landscaping contractor for Wellington Place had obtained a default

judgment against Wellington Place in the amount of

$86,000.

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Hammond was the Treasurer of the Board at

the time the financial irregularities were discovered

in 2006, and had been serving in that capacity for

many years. At no time during his lengthy term as

Treasurer did he ever reveal that he had a familial

relationship with Marie and Lauren.

Martino reported his findings to a detective at

the Aberdeen Police Department. When Martino

and another Board member went to Wachovia Bank

in Holmdel to change the signatory on the checking

accounts, they learned, for the first time, that

Lauren had, without permission, taken out a line of

credit in the amount of $21,000 in the name of Wellington Place, and that the line of credit was in default. Wachovia had become suspicious of Lauren's

activities, and filed a report with the Holmdel Police Department. Both police departments, Holmdel

and Aberdeen, forwarded their findings to the Monmouth County Prosecutor's Office, which ultimately obtained an indictment against Marie,

Lauren and Reid. A forensic audit conducted at the

request of the Association established that approximately $1,000,000 had been embezzled by PMA,

Marie, Lauren, Reid, Hammond and possibly others. During the course of discovery in the criminal

proceedings, detectives learned that Hammond was

the long-time paramour of Marie and that Lauren

was his daughter.

*3 On August 22, 2008, the Association filed

suit against Marie, Lauren, PMA, Reid, Hammond,

and numerous banks, financial institutions and insurance companies, alleging causes of action for

theft, embezzlement, unlawful conversion, breach

of fiduciary capacity and fraud. The Board sought

compensatory and punitive damages.

Marie retained Matthews to represent her, and

on October 14, 2008, Matthews filed an answer on

her behalf, and asserted a number of crossclaims for

contribution and indemnification against several of

her co-defendants, including Hammond. On

November 16, 2010, more than two years after Matthews had filed an answer on Marie's behalf, and

more than two years after Hammond became aware

that Matthews was representing Marie in the

present matter, Hammond filed a motion to disqualify Matthews, citing Rule of Professional Conduct (

RPC ) 1 .9, which concerns conflicts of interest

with former clients. The judge conducted an evidentiary hearing on January 4, 2011 followed by oral

argument three days later.

In an oral opinion rendered on January 7, 2011,

the judge made findings of fact concerning the

testimony he had heard three days earlier. The

judge prefaced his remarks by stating that he found

two portions of Hammond's testimony to be “quite

frankly incredible,” namely: 1) Hammond's claim

that he did not learn until he and Marie were driving to Matthews's office for the closing that he

would be the only party obligated on the mortgage;

and 2) that Hammond would unwillingly obligate

himself on a mortgage loan in excess of $400,000.

The judge then observed that Hammond's motion to disqualify Matthews should not be granted

unless, as the Supreme Court held in City of Atlantic City v. Trupos, 201 N.J. 447, 467 (2010),

Matthews's prior representation of Hammond was

both relevant and material to Matthews's subsequent representation of Marie. Analyzing that issue, the judge stated:

But the problem is, in this court's mind, that the

switcheroo ... between Lauren and Hammond was

done with what would appear to be Mr. Matthews's knowledge. And ... that property is the

subject of where the theft and where the money

went.... FN2

FN2. The judge referred in his findings of

fact to testimony establishing that some of

the money Lauren diverted from the Association was used to improve the Little Silver property.

....

But what does it ultimately get down to? ... Mr.

Matthews at some point, because of Marie Carty's

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testimony at her deposition [that Hammond was

aware well in advance that he would be the only

party named on the mortgage, and was agreeable

to that arrangement,] and because of Henry Hammond's testimony in front of this [c]ourt [that he

did not learn of the switch until he and Marie

were driving to Matthews's office for the closing], ... there is a wide difference between their ...

positions on what happened here.

And there is a big allusion to Mr. Matthews being part and parcel of the conversation that took

place about this switch. Obviously, that's where

the problem arises because then Mr. Matthews

does become a witness. I accept his representation ... as an officer of the [c]ourt that nothing

happened. That he simply was the closing agent

and it was a routine real estate closing.

*4 But because of their testimony, they've put

his testimony, they've made him a witness,

whether they like it or not....

But be that as it may, I'm satisfied that Mr.

Matthews has a conflict that can't be waived. It

can't be distinguished away. And ... he's going to

have to be disqualified as counsel.

Thus, as is evident from the judge's remarks,

the sole basis upon which he disqualified Matthews was his belief that Matthews would become a witness in the litigation between the Association, Marie, Lauren, and Hammond, and

would be required to provide testimony on the

circumstances under which Hammond became

the sole party named on the mortgage for the

Little Silver property in 2004.

The judge signed a confirming order on January 11, 2011, which disqualified Matthews as well

as his firm. The order stayed the disqualification of

Matthews for sixty days to permit Marie to seek interlocutory review from this court. After we granted

leave to appeal on March 2, 2011, the judge extended the stay indefinitely, pending the disposition of

the appeal.

On appeal, Marie maintains: 1) there is no conflict of interest that would disqualify Matthews or

his law firm from representing her in the present

matter, and RPC 1.9 is inapplicable; 2) RPC 3 .7,

which concerns trial counsel becoming a witness,

does not require Matthews's disqualification; 3)

the application to disqualify Matthews should have

been denied because it was not brought in good

faith; and 4) the judge erred in holding an evidentiary hearing.

II.

RPC 1.9 is the section of the Rules of Professional Conduct that controls an attorney's ability to

represent a client when there is a conflict of interest

with a former client. RPC 1.9 will not result in the

disqualification of an attorney unless three elements

are present: a past client whom the lawyer

“represented” in a matter; a present client whose interests are “materially adverse” to those of the past

client; and a current matter that is the “same” or

“substantially related” to the matter in which the

lawyer represented the past client. RPC 1.9. Because it is undisputed that Hammond is a past client

whose interests are materially adverse to those of

Matthews's present client, Marie, the first two elements are satisfied. Thus, the sole issue before us is

whether the judge erred when he concluded that the

current matter is the “same” or “substantially related” to the matter in which Matthews represented

the past client, Hammond. RPC 1.9.

In Trupos, supra, the Supreme Court developed

the following “workable standard” to be applied

when making the determination of whether the prior, and the present, matter are “substantially related.” The Court stated:

[F]or purposes of RPC 1.9, matters are deemed to

be “substantially related” if (1) the lawyer for

whom disqualification is sought received confidential information from the former client that can

be used against that client in the subsequent representation of parties adverse to the former client,

or (2) facts relevant to the prior representation are

both relevant and material to the subsequent repPage 4

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resentation.

*5 [ Trupos, supra, 201 N.J. at 451–52.]

The burden of persuasion on all elements under

RPC 1.9 “remains with the moving party, as it bears

the burden of proving that disqualification is justified.” Id. at 463 (internal quotation marks and citation omitted). The determination of whether counsel should be disqualified is an issue of law that we

review de novo. Ibid.

Applying the “workable standard” that the

Court issued in Trupos, we agree with Marie's contention that the judge erred when he disqualified

Matthews. Despite Hammond's insistence that Matthews received confidential information from him

at the time of the 2004 real estate closing on the

Little Silver property, the record is devoid of any

evidence to support such a contention.

As for the second prong of the Trupos test, we

begin by observing that the judge's oral decision did

not identify any facts that were “relevant to the prior representation” that are also “relevant and material to the subsequent representation.” Id. at 452.

This is not surprising, as there are none. Whether

Hammond found out long before the closing that he

would be the only party named on the mortgage, as

Marie contends, or whether instead he learned of

this only in the car on the way to Matthews's office,

as he contends, is immaterial. Regardless of which

version is true, it has no bearing on the present litigation, in which the Association seeks to recover

from Lauren, Marie and Hammond the nearly

$1,000,000 that was diverted and embezzled from

the Association's coffers. It is also immaterial that

Matthews might have been present while Marie and

Hammond discussed the subject, as it was not a

confidential communication between Hammond

and Matthews.

In its discussion of the second Trupos prong,

the Supreme Court spoke approvingly of the test articulated by the United States District Court for the

Southern District of New York: “ ‘whether facts

which were necessary to the first representation are

necessary to the present litigation.’ “ Id. at 465

(quoting U.S. Football League v. Nat'l Football

League, 605 F.Supp. 1448, 1459 (S.D.N.Y.1985)).

Certainly, the facts concerning when Hammond

learned that he would be the only person named on

the mortgage for the Little Silver Property are not

“necessary to the present litigation.” Id. at 465

(quoting U.S. Football League, supra, 605 F.Supp.

at 1459). We thus conclude that the judge misapplied the second Trupos prong.

We do recognize, however, that “for the purpose of impairing or supporting the credibility of a

witness,” the opposing party may “introduce extrinsic evidence relevant to the issue of credibility[

.]” N.J.R.E. 607. Thus, it is certainly possible that

at trial Hammond may seek to undermine Marie's

credibility by challenging her assertion that he

knew the true situation of the intended mortgage on

the Little Silver property in 2004 long before arriving at the closing. To accomplish such an attack on

her credibility, it is certainly possible that he might

seek to call Matthews as a witness. Even this,

which is the ground upon which the judge relied in

ordering Matthews's disqualification, does not justify the result the judge reached.

*6 RPC 3.7 provides that a lawyer shall not act

as an advocate at a trial in which the lawyer is

likely to be a necessary witness. The Rule does,

however, expressly provide an exception when the

“ disqualification of the lawyer would work substantial hardship on the client.” RPC 3.7(a)(3). In

reaching a conclusion that Matthews's disqualification was required because he might become a witness in the present litigation, the judge ignored the

“substantial hardship” exception. Had he applied

the exception, he would have been required to deny

the motion for Matthews's disqualification. Specifically, in his findings of fact, the judge concluded that the disqualification of Matthews would

create significant practical difficulties for Marie.

While he did not use the RPC 3.7(a)(3) “substantial

hardship” language, it is evident that he made just

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such a finding. The judge stated:

I feel badly for Mr. Matthews in many respects

because the other problem here is that through

marriage, he is related to Marie Carty. He has

spent a tremendous amount of time representing

her in this matter. I think it was over 300 hours at

a substantial cost to his law firm.

And he has advised the [c]ourt that she lives on

a very modest income of Social Security and the

like, has no real means to hire new counsel if he

were disualified , which creates a whole other issue for her.

[ (Emphasis added).]

Thus, the judge made a finding that it was

highly unlikely that Marie would be able to afford

counsel and would likely become pro se if Matthews were to be disqualified. That scenario constitutes “a substantial hardship” that should have

caused the judge to deny Hammond's motion to disqualify Matthews. RPC 3.7(a)(3). Thus, we conclude that the very basis upon which the judge relied in ordering Matthews's disqualification constitutes a mistaken application of the applicable law.

We therefore reverse the order under review, both

because the judge misapplied both prongs of the

Trupos test, and because the judge ignored the

“substantial hardship” exception to RPC 3.7.

We make an additional observation. Even if the

judge had been correct in disqualifying Matthews,

the judge erred when he disqualified Matthews's

entire firm from representing Marie. RPC 3.7(b)

specifically provides that even if a lawyer is disqualified from representing a client because he or

she is likely to be called as witness at trial, the lawyer's firm may still continue to represent the client.

Thus, the disqualification of Matthews's law firm

was error.

Reversed and remanded.

N.J.Super.A.D.,2011.

Wellington Place Condominium Ass'n v. Carty

Not Reported in A.3d, 2011 WL 2566105

(N.J.Super.A.D.)

END OF DOCUMENT

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Only the Westlaw citation is currently available.

United States District Court, S.D. Ohio, Western

Division.

BSW DEVELOPMENT GROUP et al., Plaintiffs,

v.

CITY OF DAYTON, et al., Defendants.

No. C–3–93–438.

Sept. 13, 1995.

Dwight Dean Brannon, Brannon & Lowe—3,

Dayton, OH, for BSW Development Group,

plaintiff.

Dwight Dean Brannon, (See above), for William I

Schoenfeld, plaintiff.

Neil Frank Freund, Shawn Michael Blatt, Freund

Freeze & Arnold—3, Dayton, OH, Jane Michele

Lynch, Green & Green, Dayton, OH, for Dayton

City of, defendant.

Neil Frank Freund, Shawn Michael Blatt, Jane

Michele Lynch, (See above), for Board of Zoining

Appeals, defendant.

Neil Frank Freund, Shawn Michael Blatt, Jane

Michele Lynch, (See above), for Landmark Commission, defendant.

Neil Frank Freund, Shawn Michael Blatt, Jane

Michele Lynch, (See above), for Teresa Prosser,

Secretary of Landmarks Commission, defendant.

DECISION AND ENTRY SUSTAINING DEFENDANTS' MOTION TO DISQUALIFY COUNSEL OF RECORD FOR PLAINTIFFS (DOC. #

42); FURTHER PROCEDURES SUGGESTED

RICE, J.

*1 This case is before the Court on the Defendants' Motion to Disqualify Counsel of Record for

Plaintiff BSW Development Corporation (“BSW”).

FN1 See Doc. # 42. With that motion, Defendants

argue that Dwight D. Brannon (“Brannon”) must be

disqualified as counsel for BSW, because Plaintiffs

have identified Brannon as an expert and as a lay

witness. See Plaintiffs' Disclosure of Witnesses

(Doc. # 10) (identifying Brannon as a potential lay

and expert witness); Plaintiffs' Notice of Supplemental Designation of Witnesses (Doc. # 54)

(identifying Brannon as a potential lay and expert

witness). In support of their motion, the Defendants

rely upon Rules 5–101(B) and 5–102(A) of the

Code of Professional Responsibility.FN2

FN1. Plaintiffs' Motion for Reconsideration (Doc. # 51) is also pending. The Court

will rule on that motion by separate entry.

FN2. Herein, this Court relies upon Rules

5–101(B) and 5–102(A) of the Ohio Code

of Professional Responsibility, since the

Ohio Code governs ethical standards in the

United States District Court for the Southern District of Ohio. See S.D.Ohio General

Order 81–1 (adopting Model Federal Rules

of Disciplinary Enforcement, which, in

Rule IV(B), provide that the Ohio Code of

Professional Responsibility shall govern

conduct of attorneys practicing in the

Southern District of Ohio).

Rule 5–101(B) provides:

A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is

obvious that he or a lawyer in his firm ought to

be called as a witness, except that he may undertake the employment and he or a lawyer in his

firm may testify:

(1) If the testimony will relate solely to an uncontested matter.

(2) If 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

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to the testimony.

(3) If the testimony will relate solely to the nature

and value of legal services rendered in the case

by the lawyer or his firm to the client.

(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel

in the particular case.

Rule 5–102(A) provides:

If, after undertaking employment in contemplated

or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be

called as a witness on behalf of his client, he

shall withdraw from the conduct of the trial and

his firm, if any, shall not continue representation

in the trial, except that he may continue the representation and he or a lawyer in his firm may

testify in the circumstances enumerated in DR

5–101(B)(1) through (4).

The Court has not conducted an evidentiary

hearing on the Defendants' Motion to Disqualify

(Doc. # 42). Indeed, no party requested such a hearing. In General Mill Supply Co. v. SCA Services,

Inc., 697 F.2d 704 (6th Cir.1982), the Sixth Circuit

held that a court need not conduct an evidentiary

hearing on a motion to disqualify, if the court does

not need to resolve factual disputes in order to rule

on that motion. Herein, no factual disputes have

been raised by the Defendants' motion. This is not a

situation where the parties disagree over whether

counsel will be called as a witness; rather, Plaintiffs

have designated Brannon as a lay and as an expert

witness, in two documents filed with this Court. See

Docs. # 10 and # 54. Moreover, the Plaintiffs have

not argued that one or more of the exceptions contained in Rule 5–101(B), and incorporated into

Rule 5–102(A), applies herein and that, therefore,

Brannon need not be disqualified. Therefore, an

evidentiary hearing was not necessary to resolve the

question of whether such an exception applies

herein.

*2 In International Electronics Corp. v. Flanzer, 527 F.2d 1288, 1294 (2d Cir.1975), the Second

Circuit explained the rationale behind Rules

5–101(B) and 5–102(A):

The ultimate justification for the disqualification

rule, in [Professor] Wigmore's view, was that the

public might think that the lawyer is distorting

the truth for the sake of his client. Another argument for disqualification is that the lawyer-witness will vouch for his own credibility in summing up to the jury—a powerful means of support for his own credibility. The argument that

such tactic is to the detriment of his client obviously defeats itself. But the argument that it is

unfair to the opponent has some merit. It is difficult, indeed, to cross-examine a witness who is

also an adversary counsel concerning matters of

fact, and, more particularly, on matters impeaching his credibility, within the bounds of propriety

and courtesy owed to professional colleagues.

See also, S & R, Inc. v. Unlimited Financing,

Inc., 625 F.Supp. 1033, 1036–37 (S.D.Ohio 1985).

Herein, Plaintiffs have indicated that they may call

Brannon as not only a lay witness, but also as an

expert witness. Testimony by Brannon as a witness

will implicate the concerns which the two disciplinary rules are designed to avoid. Indeed, in the

present litigation, the problems occasioned by

Brannon's testimony would be exacerbated by the

fact that he has been named as an expert witness. If

Brannon testifies as such a witness, Plaintiffs could

have a distinct advantage over the Defendants in

the eyes of the jury, since their counsel's excellent

qualifications and credentials, honed through years

of experience, will be set forth, under oath, as the

basis of his expert testimony. A central purpose of

Rules 5–101(B) and 5–102(A) is to prevent the prejudice a party may suffer when opposing counsel

testifies and is, therefore, able to vouch for his own

credibility before the jury in closing argument. The

danger of prejudice from vouching is increased

herein because Brannon, testifying as a expert witness, will have had the opportunity to impress the

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jury with his background as well as with his excellent qualifications and credentials. This will likely

give both his testimony and his final argument to

the jury undue weight with that body.

Nevertheless, Plaintiffs argue that Brannon

should not be disqualified, because he is a partner

of BSW and, as such, he is essentially acting as his

own counsel.FN3 Plaintiffs contend that a lawyer

has an absolute right to represent himself and that,

therefore, Rules 5–101(B) and 5–102(A) do not

mandate Brannon's disqualification. This Court

agrees with the Plaintiffs that Rules 5–101(B) and

5–102(A) do not require the disqualification of an

attorney-witness, who is acting as his own counsel. See e. g., In re American Cable Publications.

Inc., 768 F.2d 1194 (10th Cir.1985) (and cases

cited therein). See also, 28 U.S .C. § 1654 (parties

may represent themselves in litigation in courts of

the United States). However, this Court cannot

agree with the Plaintiffs that Brannon is exempt

from the prohibitions contained in Rules 5–101(B)

and 5–102(A), merely because he is a partner of

BSW.

FN3. Plaintiffs also argue that the Defendants lack standing to challenge any conflict

of interest which Brannon's participation

as their counsel may cause in this litigation. That argument misperceives the basis

of Defendants' Motion to Disqualify. The

Defendants do not argue that Brannon

must be disqualified because of a conflict

of interest; rather, they argue that he must

be disqualified because he has named himself as a witness. Courts, including the

Sixth Circuit, have long held that a party

may move to disqualify its adversary's

counsel, because he will so testify. See e.

g., General Mill Supply Co. v. SCA Services, Inc., 697 F.2d 704 (6th Cir.1982).

*3 A partnership is a unique creature. The Ohio

General Assembly has declared that a partnership

can sue and be sued in its own name. See Ohio

Rev.Code § 2307.24. In the present case, claims

have been brought in the name of the partnership,

BSW; Brannon is not named as a plaintiff. In addition, the Ohio Supreme Court has held that:

A partnership is an aggregate of individuals

and does not constitute a separate legal entity. (

R.C. 1775.05[A], construed; Byers v. Schlupe

[1894], 51 Ohio St. 300, 314, 38 N.E. 117, 121,

followed.)

Arpadi v. First MSP Corp., 68 Ohio St.3d 453,

628 N.E.2d 1335 (1994) (¶ 1 of the syllabus).FN4

See also, Battista v. Lebanon Trotting Ass'n, 538

F.2d 111, 116 (6th Cir.1976).

FN5 The fact that a

partnership, such as BSW, is an aggregate of its

partners rather than a separate legal entity does not

mean that Rules 5–101(B) and 5–102(A) do not apply to Brannon. If BSW is nothing more than an aggregate of its partners and, therefore, Brannon is

representing himself, he is also representing his

partners. In other words, Brannon is an attorney

who proposes to testify at trial not only on behalf of

himself, but also on behalf of his clients, his partners. Therefore, this Court concludes that Rules

5–101(B) and 5–102(A) apply herein even though

Brannon is a partner in BSW.FN6

FN4. In Arpadi, the Ohio Supreme Court

unanimously rejected the argument that a

partnership is a distinct legal entity, like a

corporation, so that an attorney representing the partnership primarily owes duties to the partnership. Rather, the Arpadi

court concluded that the duties which the

attorney owes to the partnership extend to

the partners.

FN5. In Battista, the Sixth Circuit concluded that, since a partnership was nothing more than a aggregate of its partners, a

partner could not be held liable for tortiously interfering with a contract entered

into by the partnership.

FN6. In addition, the Plaintiffs bring this

action not just as an action for damages

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caused to BSW by the Defendants' allegedly unconstitutional actions; rather, the

Plaintiffs also bring this action on behalf

of all taxpayers, seeking a declaration that

Dayton's ordinances relating to the preservation of historical buildings are unconstitutional. Therefore, Brannon represents

more than merely himself and his partners.

Moreover, the cases upon which the Plaintiffs

rely fail to convince this Court that it should not apply Rules 5–101(B) and 5–102(A) in the present

case. For instance, in Mentor Lagoons, Inc. v. Rubin, 31 Ohio St.3d 256, 510 N.E.2d 379 (1987), the

Ohio Supreme Court concluded, in ¶ 1 of the syllabus, that Rule 5–102(A) does not that render an

attorney incompetent to testify and that a trial court

may not, therefore, prevent counsel for one of the

parties from so testifying.FN7 That court also held,

in ¶ 2 of the syllabus, that when an attorney is

called as a witness in a case, the trial court must apply Rule 5–102(A), including the exceptions to disqualification incorporated into that rule, to determine whether counsel must be disqualified (or should

be allowed to withdraw). Herein, the Defendants do

not seek to prevent Brannon from testifying; rather,

they are following the procedure mandated in Mentor Lagoons by seeking to have the Court disqualify

him in his role as counsel, because he has been

named as a potential witness. In many of the other

cases cited by the Plaintiffs,FN8 the courts recognized that Rules 5–101(B) and 5–102(A) do not require the disqualification of an attorney-witness

who is representing himself as a party to the litigation. Herein, Brannon is not merely representing

himself; rather, he seeks to represent BSW, a partnership of which he is a partner. Therefore, to the

extent that, because he is a partner in BSW, he represents himself, he also represents his partners.

FN7. In Mentor Lagoons, the plaintiff's

counsel had himself sworn as a witness.

The defendants' counsel then moved, orally, to disqualify him. The trial court, sua

sponte, prohibited plaintiff's counsel from

testifying.

FN8. See Borman v. Borman, 278 Mass.

775, 393 N.E.2d 847 (1979); Presnick v.

Esposito, 8 Conn.App. 364, 513 A.2d 165

(1986); O'Neil v. Bergan, 452 A.2d 337

(D.C.App.1982) and Beckstead v. Desert

Roofing Company, 831 P.2d 130 (Utah

App.1992).

The Plaintiffs rely on Gorovitz v. Planning Bd.

of Nantucket, 394 Mass. 246, 475 N.E.2d 377

(1985). In Gorovitz, the Supreme Judicial Court of

Massachusetts, in extending the principle that an

attorney-witness representing himself cannot be

disqualified, under Rules 5–101(B) and 5–102(A),

to a situation where the attorney-witness was representing a limited partnership, of which he was

the general partner, held that Rules 5–101(B) and

5–102(A) did not require the disqualification of an

attorney-witness who was also the general partner

of a limited partnership on whose behalf the action

was brought.FN9 Given the unique facts of the instant case, this Court is unwilling to follow

Gorovitz. In Gorovitz, the attorney was going to

testify as a fact witness, regarding events which occurred before the Nantucket Planning Board.

Herein, Brannon proposes to testify not only as a

fact or lay witness, but also as an expert witness. As

stated, it would be unfair to the Defendants to require them to oppose counsel who has testified regarding his credentials and his qualifications to

give such expert testimony. In addition, the

Plaintiffs bring this action not just as an action for

damages caused to BSW by the Defendants' allegedly unconstitutional actions; rather, the

Plaintiffs also bring this action on behalf of all taxpayers, seeking a declaration that Dayton's ordinances relating to the preservation of historical

buildings are unconstitutional. Therefore, Brannon

represents more than merely himself and his partners.

FN9. Under Massachusetts law, an action

on behalf of a limited partnership must be

brought in the name of the general partner.

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394 Mass. at 249, 475 N.E.2d at 380.

*4 Based upon the foregoing, the Court sustains the Defendants' Motion to Disqualify

Plaintiffs' Counsel (Doc. # 42). This Decision does

not prevent Brannon from participating in pre-trial

procedures, such as discovery and motion practice.

A central purpose of Rules 5–101(B) and 5–102(A)

is to prevent the prejudice which could befall one

party when opposing counsel is able to vouch for

his own credibility before the jury, because he has

testified at the trial. The danger of prejudice from

vouching will not occur during the pre-trial stage of

this litigation. Likewise, there can be no prejudice

to the Defendants, at the pre-trial stage, from the

jury having heard of the credentials and qualifications of counsel as an expert witness.

In order to minimize any hardship which this

Decision may cause to the Plaintiffs (see Rule

5–101[B][4] ), a member of Brannon's law firm

may serve as trial counsel for the Plaintiffs. In addition, Brannon may sit at counsel table, as the representative of BSW, and consult with trial counsel

during the trial. In sum, the Court herein merely

forbids Brannon from both testifying as a lay and/or

expert witness (unless such testimony comes within

one of the three exceptions listed in Rule 5–101[B]

) and acting as trial counsel for the Plaintiffs.FN10

FN10. Parenthetically, the Court notes that

it is difficult to imagine how testimony by

Brannon as an expert witness could fall

within one or more of the enumerated exceptions.

This Court expressly grants the Plaintiffs fourteen days from the entry of this Decision in which

to file a motion seeking to have the Court reconsider this Decision to disqualify counsel. If such a

motion is filed, the Plaintiffs must support same

with an affidavit, convincing the Court either that

Brannon will not testify as a witness,FN11 or that,

if Brannon will so testify as a lay witness, but only

as a lay witness, that his testimony will relate solely

to an uncontested matter, to a matter of formality,

there being no reason to believe that substantial

evidence will be offered in opposition to his testimony, or to the nature and value of legal services

rendered in this case by him to the Plaintiffs. See

Rule 5–101(B) and Rule 5–102(A). In the event

that the Plaintiffs choose not to file such a motion,

they are hereby given 30 days from the entry of this

Decision within which to secure substitute trial

counsel. In the event that such a motion is filed, the

parties may brief same in accordance with the local

rules of court. See S.D.Ohio L.R. 7.2(a)(2).

FN11. When a sophisticated client makes

an informed choice not to call its attorney

as a witness, even though counsel may be a

potential witness, courts have held that it is

not necessary to disqualify counsel. See

e.g., Banque Arabe et Internationale v.

Ameritrust Corp., 690 F.Supp. 607

(S.D.Ohio 1988). Therefore, if Plaintiffs

decide that Brannon's testimony is not necessary, the basis for disqualifying him

will have disappeared.

S.D.Ohio,1995.

BSW Development Group v. City of Dayton

Not Reported in F.Supp., 1995 WL 1671908

(S.D.Ohio)

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Only the Westlaw citation is currently available. NOT FOR PUBLICATION

United States District Court,

D. New Jersey.

Regina S. BAILEY, Plaintiff,

v.

Joseph GIBBONS, Tanya Wood, David Watkins, Esq., Kelly Burton Rocco, Esq., Pat Priant, Russo Realty, the City of Englewood, an Unknown Police Woman, Thornton White, Englewood Police Officer, 

Gonzalez, Englewood Police Officer, Barrett, Englewood Lieutenant, and 2 Unknown Englewood Police 

Officers, Defendants.

Civ. Action No. 09–4119 (KSH).

Sept. 12, 2011.

OPINION

KATHARINE S. HAYDEN, District Judge.

I. Introduction

*1 This case touches on several areas of law and involves numerous players. The central actor is plaintiff 

Regina Bailey, who sold her home in Englewood, New Jersey as part of the resolution of her divorce. 

Kelly Burton Rocco served as her attorney in connection with the court action that resulted in the forced 

sale of the house. The house was listed by Russo Realty, whose agent, Pat Priant, obtained the eventual 

buyers, Joseph Gibbons and Tanya Wood. Gibbons and Wood were represented by David Watkins during the sale. As explained in more detail below, Bailey remained on the property after the closing to clear 

her possessions out of the house, and Gibbons subsequently called the police to have her removed. City 

of Englewood police officers Thornton White and Anthony Gonzalez, as well as Lieutenant Kevin Barrett, responded to the call and briefly detained Bailey before letting her go.

Bailey instituted an action in New Jersey state court on January 13, 2009, asserting various state law 

causes of action against all of the above-named individuals and entities. Judge Menelaos W. Toskos 

granted summary judgment to the City of Englewood and its police officers (“the Englewood defendants”), but allowed Bailey to file an amended complaint. She did so on July 17, 2009, this time alleging 

federal and state constitutional claims against the Englewood defendants and asserting state law claims 

against the remaining defendants. With the permission of the other defendants, the Englewood defendants removed the case to this Court, asserting federal question jurisdiction under 28 U.S.C. § 1331. [D.E. 

1.]

After discovery had been completed, all of the defendants moved for summary judgment [D.E. 77, 78, 

79, 80, 95], and Bailey moved for summary judgment against all of the defendants [D.E. 83]. In addition, 

Rocco, who had unsuccessfully moved before Magistrate Judge Patty Shwartz to disqualify Bailey's 

counsel, James Marks, and for leave to amend her answer to file a third-party complaint against Marks, 

appealed Judge Shwartz's decision. [D.E. 94.]

The only federal claims stated in Bailey's amended complaint are those asserted against the Englewood 

defendants. As discussed below, those claims must be dismissed because the Englewood defendants are 

entitled to immunity, and the Court declines to exercise supplemental jurisdiction over the remainder of 

Bailey's claims. Parker v. NutriSystem, Inc., 620 F.3d 274, 276 n. 2 (3d Cir.2010) (citing 28 U.S.C. § 

1367(c)(3)). Because the Court opts not to exercise jurisdiction over Bailey's state law claims, this opinion relates only to her federal claims and to Rocco's appeal. Accordingly, the following statement of facts 

relates only to the police incident. The Court bases its analysis of Rocco's appeal on the statement of 

facts in Judge Shwartz's opinion [D.E. 92], and will review those findings of fact for clear error. See 

Lithuanian Commerce Corp., Ltd. v. Sara Lee Hosiery, 177 F.R.D. 205, 213 (D.N.J.1997).

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II. Summary of FactsFN1

FN1. These facts, and all reasonable inferences that can be drawn therefrom, are viewed in the light most 

favorable to Bailey. Knopick v. Connelly, 639 F.3d 600, 606 (3d Cir.2011).

*2 As a result of a contentious divorce, Bailey was court-ordered to sell the home she lived in for 25 

years, which was located at 166 Belmont Street in Englewood, New Jersey. (Bailey Dep. 130:2–10.) The 

closing occurred on December 27, 2008, and pursuant to an escrow agreement the parties executed, Bailey was given from the closing until January 4, 2008, to remove all of her possessions from the property. 

(Bailey Dep. 19:19–21; Escrow Agreement, attached to Mory Certif. as Ex. I.) The agreement provided 

that if she failed to do so by that date, the buyers, Gibbons and Wood, would have the right to employ a 

moving and cleaning company “to effectuate the house being delivered in a broom clean condition.” (Escrow Agreement) The agreement also provided that the buyers could deduct from the amount held in escrow the pro-rata monthly interest they were obligated to pay under their mortgage from the closing date 

until such time as the property could be delivered in broom-clean condition. (Id.) These deductions cost 

Bailey approximately $50 per day.

Bailey did not remove her property from the house by January 4. (Bailey Dep. 30:21–25.) On January 7, 

Gibbons came to the property, and Bailey called the police “for help.” (Bailey Reply Certif. of Facts ¶ 

66–68.) Officer Jamie Gillert, who is not a defendant in this action, responded. (Gillert Dep. 8:2–4.) She 

told Bailey that she needed to be out of the house by the next morning, and she told Gibbons that he 

would need a court order to have Bailey removed, in light of the fact that at the time he did not have documents proving his ownership of the house.FN2 (Gillert Dep. 11:8–21; Bailey Dep. 49:1–3; Bailey Reply 

Certif. of Facts ¶ 72.) Though movers came the next morning, Bailey did not have them remove all of her 

possessions from the property. (Bailey Dep. 52:23–53:6, 56:5–23.)

FN2. Bailey does not assert any claims based on Gillert's visit to the property.

On January 10, Bailey, who was 64 years old at the time, was admitted to the hospital; she stayed there 

until January 13 for treatment of diabetes and high blood pressure. (Bailey Reply Certif. of Facts ¶ 85.)

On the morning of January 14, 2008, Bailey went to her former home and discovered a dumpster outside 

the house, filled with construction debris and some of her possessions. (Id. ¶¶ 96–97.) The door to the 

house was open, and Bailey could see workers inside breaking her dishes. (Id.) She began to take some of 

her possessions from the house and place them on a neighbor's lawn. (Id. ¶ 99.) She believed that the Escrow Agreement gave her the right to be on the property and reclaim her possessions. (Id. ¶¶ 101–102.)

One of the workers called Gibbons, who in turn called the police, gathered all of the documents he 

thought he would need to prove his ownership of the property, and then drove to the property to meet the 

police there, with the intention of having Bailey removed. (Gibbons Dep. 89:18–91:6, 115:5–13.) Police 

officers Thornton White and Anthony Gonzalez responded in separate vehicles, arriving simultaneously 

at 9:50 a.m. (White Dep. 9:19–22.) White proceeded to talk to Gibbons, who showed the officer his deed 

to the property and his driver's license and told the officer that he had bought the house three weeks earlier and that, while Bailey was allowed on the premises for a certain period after the closing, at that time 

she was trespassing. (Gibbons Dep. 92:16–20, 92:24–93:1; White Dep. 15:4–6, 23:16–19.) For her part, 

Bailey testified that although she did not see Gibbons show any documentation, it is possible that he did. 

(Bailey Dep. 100:1–17.) Gonzalez stated in his answers to interrogatories that during most of the officers' 

visit, Bailey was walking around the property, occasionally carrying some of her personal possessions. 

(Gonzalez Interrogs. ¶ 7.)

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*3 After speaking to Gibbons, White attempted to talk to Bailey, but she ignored his questions. (White 

Dep. 28:16–19, 28:23–25; Gonzalez Dep. 12:24–13:1, 13:6–8.) She also did not show him any documentation, such as a lease agreement, that would establish her right to be on the property, and White unsuccessfully told her she needed to leave the property. (White 65:22–24, 66:4–6; Gonzalez Dep. 9:17–22.) 

White called Lieutenant Kevin Barrett and asked him to come to the property, hoping a higher-ranking 

officer could be more effective, but Bailey ignored Barrett, as well. (Barrett Dep. 12:12–23, 32:13–19.) 

After Barrett arrived, White filled him in on everything that had happened; Barrett subsequently asked 

Gibbons if he wanted to file a complaint against Bailey, and Gibbons responded that he did. (Gibbons 

Dep. 119:18–120–5; Barrett Dep. 21:19–22.) Barrett instructed White to arrest Bailey, and White took 

his handcuffs off of his belt, told Bailey to put her hands behind her back, and took hold of her wrists in 

order to put the handcuffs on her. (Barrett Dep. 33:2–6, 33:14–18; Gibbons Dep. 121:3–10; Bailey Dep. 

135:17–19.) However, when Gibbons realized that filing a complaint meant Bailey would be handcuffed 

and taken to jail, he immediately told the officers that he did not want her arrested, but merely wanted her 

removed from the property. (Gibbons Dep. 100:18–22, 101:8–14; Bailey Dep. 105:12–15.) The police 

then let her go with a warning that she should not return to the property without first calling the police, 

and they also suggested that she seek legal counsel if she needed it. (Bailey Dep. 109:24–110:4; Barrett 

Interrogs. ¶ 7.)

Bailey conceded in her deposition that only a few seconds elapsed from the time White removed the 

handcuffs from his belt to the time he released her. (Bailey Dep. 135:2–136:7.) While she initially testified that her excessive force claims are premised on White's conduct in putting her hands behind her back 

and grabbing her wrists, she immediately corrected herself and stated that she moved her hands behind 

her back on her own. (Id. 135:2–136:7.) She also testified that White did not squeeze or punch her wrists, 

did not injure her, and never actually placed the handcuffs on her. (Id. 105:5–8, 105:12–15, 135:2–136:7, 

154:6–7.) Indeed, she testified that she was never arrested. (Id. 116:13–14.) She also confirmed that the 

police did not take any of her possessions from the house. (Id. 130:21–23.) She added that “[m]aybe it 

was only a couple of seconds, but it was a scary couple of seconds.” (Id. 109:7–8, 135:2–136:7.)

Ten to fifteen minutes after the first incident, Bailey returned to the property, believing she had left her 

car keys behind. (Bailey Dep. 110:19–25, 111:1–112:15.) Remembering the police officers' advice, she 

called the police for assistance. (Id. 32:6–9, 109:24–110:4.) This time, White and Officer Johnson responded, and Johnson helped Bailey find her keys, which were hanging from her neck, underneath her 

sweater. (Bailey Dep. 112:1–15.)

III. Summary Judgment Standard

*4 Summary judgment may be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material 

fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact is 

material if, under the applicable law, it could affect the outcome of the suit, and an issue of fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Id. The mere 

existence of some disputed facts is insufficient to defeat a motion for summary judgment. Id. When considering a summary judgment motion, a court must view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Knopick v. Connelly, 639 F.3d 600, 

606 (3d Cir.2011). However, in opposing a motion for summary judgment, a party cannot rest on the 

pleadings, but must set forth specific facts demonstrating the existence of a genuine issue of fact. United 

States v. 717 S. Woodward St., 2 F.3d 529, 533 (3d Cir.1993) (quoting Fed.R.Civ.P. 56(e)). The district 

court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether 

there is a genuine issue for trial. Anderson, 477 U.S. at 249.

IV. Claims Against the City of Englewood

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The City of Englewood contends that, under the rule set out in Monell v. Department of Social Services,

it is immune from suit. Monell, the seminal case on municipal liability, held that a municipality can be 

sued under 42 U.S.C. § 1983 only if the official conduct that caused the plaintiff's injury was the result of 

the municipality's policy or custom. 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A policy 

is defined as a “policy statement, ordinance, regulation, or decision officially adopted and promulgated 

by” the municipality, id., while a custom is defined as a course of conduct that, while not officially 

adopted, is so permanent and well settled “ ‘as to virtually constitute law.’ “ Hansell v. City of Atlantic 

City, 152 F.Supp.2d 589, 609 (D.N.J.2001) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 

1480 (3d Cir.1990)). In addition to establishing the existence of a policy or custom, a plaintiff must establish a causal connection between the policy or custom and the injury suffered. Talbert v. Kelly, 799 

F.2d 62, 67 (3d Cir.1986). “[A] single incident of police misbehavior by a single policeman is insufficient as sole support for an inference that a municipal policy or custom caused the incident.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 832, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985).

The City of Englewood argues, in support of its motion for summary judgment, that Bailey “has not 

identified any policy, practice or custom implemented by a policymaker which existed on the date of 

[Bailey's] arrest,” and that she has failed to establish a causal link between the policy and her injury. 

(Englewood Defs.' Moving Br. at 31–32.) Bailey responds with a host of counterarguments, none of 

which are sufficient to forestall a grant of summary judgment to the City of Englewood.

*5 First, Bailey contends that the City of Englewood has a policy of inadequately training its officers to 

deal with landlord/tenant issues. However, she provides no evidence of how the City of Englewood trains 

its officers, no indication of the specific training it failed to provide, and no suggestion of how providing 

that training could have reasonably prevented her injury. “A § 1983 plaintiff pressing a claim of this kind 

must identify a failure to provide specific training that has a causal nexus with his or her injury and must 

demonstrate that the failure to provide that specific training can reasonably be said to reflect a deliberate 

indifference to whether constitutional deprivations of the kind alleged occur.” Colburn v. Upper Darby 

Twp., 946 F.2d 1017, 1030 (3d Cir.1991). Simply showing that police officers could have been better 

trained is insufficient, id. at 1029–30, but that is all Bailey does here. She thus cannot establish a Monell

claim for failure to train.

Second, Bailey contends that in his police report, White (1) misstated the title of the statute pursuant to 

which Bailey was arrested, and (2) failed to include any mention of the documents he reviewed at the 

scene. Her argument regarding the title of the statute—that it was changed when the statute was amended 

in 2005 and that White should have been aware of the change—is absurd. The substance of the law was 

not changed in any way relevant to this case, 2005 N.J. Sess. Law Serv. Ch. 100 (West),FN3 and even if 

White's error were more than a typo, Bailey cannot base a Monell claim on a single policeman's mistake. 

See Tuttle, 471 U.S. at 832. The second argument is just as flimsy; Bailey contends that “[b]oth Lieutenant Barrett and Chief O'Keefe admit this omission [of the documents White reviewed] was not proper 

policy.” (Opp'n Br. to Englewood Defs. at 37 (quoting Pls.' Expert Report).) This is tantamount to an acknowledgment that whatever errors White made on his police report, they were not made pursuant to a 

City of Englewood policy or custom and therefore cannot expose the City of Englewood to liability.

FN3. The amendment added “power generation facility, waste treatment facility, public sewage facility, 

water treatment facility, public water facility, nuclear electric generating plant [and] any facility which 

stores, generates or handles any hazardous chemical or chemical compounds” to the list of structures 

where unlicensed entry constitutes a fourth degree crime, rather than a disorderly persons offense. 2005 

N.J. Sess. Law Serv. Ch. 100 (West)

Third, Bailey asserts that because White knew that Gillert had been called to the scene previously, he 

should have called in to the station to review what had occurred at that prior incident. She suggests that 

his failure to do so was the result of a department-wide policy not to radio back to the station. Setting 

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aside whether there is a causal connection between White's failure to call back to the station and Bailey's 

alleged injury,FN4 Bailey's assertion that the City of Englewood has a policy of not calling back to the police station, made through her expert witness, is incorrect. What Englewood police Chief Arthur O'Keefe 

actually stated in his deposition was that the fact that there had been a previous incident at the same location would not necessarily be relevant to an officer on the scene, and that the officer would make the decision whether to gather information about the previous incident “based upon the circumstances and facts 

in front of him.” (O'Keefe Dep. 45:3–15, 46:9–23.) He added that a call back to the station might help 

provide a frame of reference, but is not imperative. (Id. 46:20–23.) Having failed to identify a policy 

mandating that White not call back to the station, Bailey cannot press a claim against the City of Englewood based on his failure to do so.

FN4. This discussion will be taken up infra with regard to the individual officers' motion for summary 

judgment.

*6 Fourth, Bailey asserts that the police department should have conducted an internal affairs investigation into the January 14, 2008, incident, and that its failure to do so gives rise to municipal liability. For 

support she cites Monaco v. City of Camden, 2008 WL 408423 (D.N.J. Feb.13, 2008). There, Judge 

Simandle denied the city's motion for summary judgment, determining that the evidence demonstrated 

that the city repeatedly failed to conduct investigations into allegations of excessive force and that all of 

the investigations that did take place were aimed at shoring up the police department's defenses rather 

than rooting out police misconduct. Id. at *14. The critical difference between Monaco and this case is 

that in this case, Bailey has not provided any evidence that the City of Englewood has systematically 

failed to investigate allegations of excessive force—or any other alleged constitutional violation—such 

that the city can be deemed to be deliberately indifferent to the kind of injury Bailey claims to have suffered. See Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 584 (3d Cir.2003) (“[A] policy or custom may also exist where the policymaker has failed to act affirmatively at all, though the need to take 

some action to control the agents of the government is so obvious, and the inadequacy of existing practice so likely to result in the violation of constitutional rights, that the policymaker can reasonably be said 

to have been deliberately indifferent to the need.” (internal quotation marks omitted)).

In sum, Bailey has not offered any facts sufficient to hold the City of Englewood liable for the actions of 

its individual officers. The City of Englewood is therefore entitled to summary judgment on all of the 

claims against it.

V. Claims Against the Individual Police Officers

The individual police officers assert that they are entitled to qualified immunity, and that Bailey's § 1983

claims against them should therefore be dismissed.

A. Qualified Immunity

Section 1983 provides a cause of action to any person who has been deprived of their federal rights by a 

person acting under color of state law. However, “[w]hen an officer's actions give rise to a § 1983 claim, 

the privilege of qualified immunity, in certain circumstances, can serve as a shield from suit.” Wright v. 

City of Philadelphia, 409 F.3d 595, 599 (3d Cir.2005) “Qualified immunity is a complete immunity from 

suit ....“ Giles v. Kearney, 571 F.3d 318, 325 (3d Cir.2009). Under this doctrine, “[g]overnment officials 

performing discretionary functions are immune ‘from liability for civil damages insofar as their conduct 

does not violate clearly established statutory or constitutional rights of which a reasonable person would 

have known.’ “ Lamont v. New Jersey, 637 F.3d 177, 182 (3d Cir.2011) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The appropriate inquiry is two-pronged and 

asks (1) whether the official's conduct violated a constitutional right, and (2) whether that right was clearly established such that “a reasonable official would understand that what he is doing violates that right.” 

Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Lamont, 637 F.3d at 

182. Because police officers in the field must make “split-second judgments—in circumstances that are 

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tense, uncertain, and rapidly evolving,” Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 

272 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 

L.Ed.2d 565 (2009), they are entitled to some leeway for the decisions they make. Gilles v. Davis, 427 

F.3d 197, 207 (3d Cir.2005). Thus, “[t]he reasonableness of the officer's belief should be judged from 

[an] on-scene perspective, not with the perfect vision of hindsight.” Id. In short, qualified immunity excuses an officer's reasonable mistake as to what the law requires. Saucier, 533 U.S. at 206. “ ‘If officers 

of reasonable competence could disagree on th[e] issue, immunity should be recognized.’ “ Giles, 571 F 

.3d 325 (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).

B. False Arrest and False Imprisonment

*7 The Fourth Amendment states that the people are entitled “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, ... and no Warrants shall issue, but upon 

probable cause.” U.S. Const. amend. IV. “An arrest by a law enforcement officer without a warrant ‘is 

reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense 

has been or is being committed.’ “ Wright, 409 F.3d at 601 (quoting Devenpeck v. Alford, 543 U.S. 146, 

125 S.Ct. 588, 160 L.Ed.2d 537 (2004)). The evidentiary standard for establishing probable cause is 

much less stringent than that for obtaining a conviction. Id. Indeed, the conception of probable cause has 

long been recognized as practical and nontechnical, and it is intended to balance the right of the people 

from unreasonable intrusions with the need of law enforcement officers to perform their duties. Brinegar 

v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). “A ‘common sense approach 

[must be taken] to the issue of probable cause’ and a determination as to its existence must be based on 

‘the totality of the circumstances.’ “ Paff v. Kaltenbach, 204 F.3d 425, 436 (3d Cir.2000) (quoting Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir.1997)). Probable cause to arrest exists if “at the moment the arrest was made ... the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [arrestee] 

had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 

142 (1964). “In other words, the constitutional validity of the arrest does not depend on whether the suspect actually committed any crime.” Wright, 409 F.3d at 602 (citing Johnson v. Campbell, 332 F.3d 199, 

211 (3d Cir.2003)).

The Wright case is a helpful guide. There, the plaintiff, Kimberly Wright, was a woman who had been 

sexually assaulted in a home in Philadelphia. 409 F.3d at 597. After her attackers forced her out of the 

house, she returned and broke in to recover her personal belongings and take other items that she believed could be used to identify her attackers. Id. She later reported the assault to the police, and the 

owner of the house—who was the sister of one of the attackers—reported the break-in. Id. A different 

police officer investigated each alleged crime. Id. Wright told the officer investigating the assault that she 

had broken into the house to recover items that would prove she had been there; she gave those items to 

the police, and the police later returned the items to the owner of the house. Id. During the investigation 

into the break-in, the investigating officer learned that the owner's brother had brought a woman to the 

house. Id. The officer found a broken pane of glass and a piece of paper with Wright's name inside the 

house, and during an interview, the owner's brother acknowledged that he had brought Wright to the 

house but denied that he had had sex with her. Id. At some point, the officers learned of each other's investigations. Id. at 598. Subsequently, the officer investigating the assault determined there was insufficient foundation to proceed, but before that investigation closed, the other officer obtained an affidavit of 

probable cause to arrest Wright for burglary. Id. Wright was arrested without a warrant and charged with 

burglary, theft, and criminal trespass, but all of the charges were later dropped. Id.

*8 The Third Circuit held that the police were entitled to qualified immunity because they had probable 

cause to arrest Wright for criminal trespass, reversing the decision of the District Court. Id. at 603–04. 

The Third Circuit started its analysis with Pennsylvania's criminal trespass statute, noting that “probable 

cause exists for an arrest for criminal trespass when the facts and the circumstances are sufficient for a 

prudent person to believe that the suspect: (1) entered or broke into a building or occupied structure, (2) 

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knowing that she or he had no license or privilege to do so.” Id. at 603 (citing 18 Pa. Cons.Stat. Ann. § 

3503(a) (1)). Assuming, as it was required to do, that Wright mistakenly believed that she was entitled to 

break in to the house to retrieve her belongings and physical evidence, the Court nevertheless stated that 

it was “concerned here only with the question of probable cause, not Wright's guilt or innocence.” Id.

Thus, the question was whether the facts and circumstances presented to the officers justified a reasonable belief on the officers' part that Wright had committed a trespass. Id. The Court answered in the affirmative, reasoning that the officers did not believe Wright's explanation for the break-in and that, because the probable cause inquiry looks to the totality of the circumstances, they were not required either 

to correctly resolve conflicting evidence or to make an accurate credibility determination. Id. In addition, 

Wright admitted to entering the house, a neighbor identified her, and her name was found on a piece of 

paper inside the house. Id. Thus, the Court held that based on the information that was available to the officers at the time, any mistake they made was reasonable. Id .

Another Third Circuit case, Feldman v. Community College of Allegheny, is also instructive. See 85 F. 

App'x 821 (3d Cir.2004). In that case, the plaintiff was forcibly removed from a campus computer lab by 

Pittsburgh police officers and arrested for trespass; he had previously had a dispute with the lab instructor 

over his contractual right to use the lab. Id. at 824. The Third Circuit affirmed the District Court's grant 

of summary judgment in favor of the arresting officers on the plaintiff's false arrest claim. Id. at 825. It 

noted that a college security guard had informed the officers that he had told the plaintiff to leave and the 

plaintiff refused to comply, and it found that that information was enough to establish probable cause to 

arrest for defiant trespass. Id. Furthermore, the Court rejected the plaintiff's contention that the officers 

were under a duty to investigate his claim of right to use the computer lab, reasoning that “an officer is 

not required to ‘undertake an exhaustive investigation in order to validate the probable cause that, in his 

mind, already exists.’ “ Id. (quoting Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 790 n. 8 

(E.D.Pa.1999)); see also Gramenos v. Jewel Cos., 797 F.2d 432, 439 (7th Cir.1986). The Third Circuit 

approvingly quoted the District Court's conclusion: “[T]here is no question that the police officers were 

not required or permitted to conduct a trial of the matter on the spot to determine whose interpretation of 

[the College's] policies was correct, and that there was ample probable cause to arrest this defiant trespasser who refused to obey repeated requests by the owner's agents to leave.” Feldman, 85 F. App'x at 

826.

*9 Turning to the case at hand, the Court concludes that White, Gonzalez, and Barrett had reasonable 

grounds to believe Bailey had committed a trespass. Thus, they had probable cause to arrest Bailey, there 

was no constitutional violation, and the officers are entitled to qualified immunity.

Bailey was arrested FN5 for “unlicensed entry of structures,” which is a species of criminal trespass. 

N.J.S.A. § 2C:18–3(a); State v. Braxton, 330 N.J.Super. 561, 565 n. 1, 750 A.2d 185 (App.Div.2000). 

The statute provides that “[a] person commits an offense if, knowing that he is not licensed or privileged 

to do so, he enters or surreptitiously remains in any research facility, structure, or separately secured or 

occupied portion thereof.” N.J.S.A. § 2C:18–3(a). It is an affirmative defense if “[t]he actor reasonably 

believed that the owner of the structure, or other person empowered to license access thereto, would have 

licensed him to enter or remain.” N.J.S.A. § 2C:18–3(d). The elements of the crime are thus nearly identical to Pennsylvania's criminal trespass statute: (1) entering or remaining in a structure (2) with 

knowledge that such entry is not licensed. The Englewood police officers therefore are entitled to qualified immunity if “the facts and the circumstances are sufficient for a prudent person to believe that [Bailey]: (1) entered or broke into a building or occupied structure, (2) knowing that she ... had no license or 

privilege to do so.” Wright, 409 F.3d at 603.

FN5. The Englewood defendants contend that Bailey was never actually arrested because she was only 

stopped for a matter of seconds, she was never handcuffed, and she was never processed. In addition, 

Bailey testified that she was never arrested. “To constitute an arrest, however—the quintessential ‘seizure 

of the person’ under our Fourth Amendment jurisprudence—the mere grasping or application of physical 

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force with lawful authority, whether or not it succeeded in subduing the arrestee, [is] sufficient.” California v. Hodari D., 499 U.S. 621, 624, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). White took hold of Bailey's wrists with lawful authority; therefore, Bailey was arrested.

The record, viewed in the light most favorable to Bailey, shows that after White and Gonzalez arrived at 

the scene, White spoke to Gibbons, who told White that he was the owner of the property and that Bailey 

was trespassing. Gibbons then showed White his deed to the property, and White thereafter attempted to 

speak to Bailey to determine whether she had any documentation establishing her right to be there. Bailey did not provide any documentation and did not speak to the officers. When Barrett arrived, White informed him of the pertinent facts, and after asking Gibbons whether he wanted to file a complaint, Barrett instructed White to arrest Bailey. The information available to the officers at the time-Gibbons's 

statements, the deed, and Bailey's failure to demonstrate that she was allowed on the property-is sufficient to establish that they had reasonable grounds to believe Bailey's entry into the house was unlicensed 

and that she knew this to be the case. Therefore, the officers had probable cause to arrest her.

Bailey prevents several arguments in support of her view that no probable cause existed, none of which 

are availing. Her primary probable cause argument proceeds from the contention that she in fact had a 

right to be on the property on January 14, 2008, because the Escrow Agreement purportedly gave her that 

right, so long as she paid $50.94 for each day she occupied the property after the closing date. Ergo, the 

police could not possibly have had probable cause to arrest her for trespass. This line of reasoning confuses the issue. The question is not whether Bailey was actually guilty or innocent; it is whether the officers, given the facts and circumstances presented to them, reasonably believed they had probable cause 

to arrest Bailey. Wright, 409 F.3d at 603. In this connection, whether the Escrow Agreement provided 

Bailey the right to remain on the property as of January 14 is irrelevant. It is undisputed that the officers 

never saw the Escrow Agreement. While White knew at the time of the arrest that Bailey had been allowed to remain on the property for some period after the closing date, he was not aware of when that period was to end and was not aware of any formal agreement to that effect. Probable cause is a “totality of 

the circumstances” inquiry, and taken together with the remainder of the available information, White's 

knowledge that Bailey had been allowed to stay on the property at some point does not defeat the conclusion that the officers reasonably believed they had probable cause to arrest her.

*10 Bailey also contends that because White knew that Gillert had previously been at the scene (White 

Dep. 11:1), he had a duty to call back to the police station and investigate what had transpired during the 

prior incident. Instead of investigating, Bailey argues, the officers simply took Gibbons at his word that 

he owned the house and that Bailey was trespassing. Furthermore, she asserts that Barrett's investigation 

was inadequate because he did not speak to either of the parties, but acted only on the information White 

provided to him. Her contentions are unfounded in law. As the Third Circuit stated in Feldman, an officer on the scene need not undertake an exhaustive investigation and may not conduct a trial of the matter at the scene. 85 F. App'x at 825–26. Gibbons's statements, the deed, and Bailey's failure to explain her 

presence were sufficient to establish probable cause, and neither White nor Barrett was obligated to delve 

further by investigating Gillert's prior response.

In a related argument, Bailey asserts that Gibbons never actually showed the police his deed to the property. This argument has five prongs: (1) Gibbons testified that he did not show the deed to White during 

the officer's first visit to the property; (2) Gibbons testified that he only showed the deed to the police at 

the police station; (3) the police report made no mention of the deed; (4) Bailey did not see Gibbons 

show the officers the deed; and (5) Gibbons only had one copy of the deed, and that copy was at the 

County Clerk's office on January 14, 2008, awaiting recordation.

Gibbons's confusion as to the correct sequence of events notwithstanding, FN6 the record shows that he 

did in fact show the police the deed at some point before Bailey was arrested. In fact, Gibbons testified 

that he showed the police officers the deed and his driver's license during their first visit to the property. 

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(Gibbons Dep. 92:16–20, 111:5–13, 114:19–115:10.) The testimony that Bailey purports to be an admission that Gibbons did not show the deed during the first visit is not what Bailey claims it is. Gibbons's 

testimony only reflects that White informed him that Bailey had said Gibbons owned the house. (Bailey 

Moving Br. at 47–48 (recounting Gibbons's deposition testimony).) Nowhere did Gibbons state that he 

did not show White the deed. Bailey's assertion that Gibbons testified that he only showed the deed at the 

police station is also inaccurate, and it is immaterial, as well. Gibbons actually testified that he showed 

the police officers the deed both at the property and at the police station. (Gibbons Dep. 114:19–116:7.) 

In any event, Bailey's contention that Gibbons only showed the deed at the police station merely serves to 

prove that Gibbons showed the police the deed at some point before her arrest. Furthermore, while Bailey 

is entitled to all reasonable inferences at the summary judgment stage, White's failure to mention the 

deed in the police report does not support an inference that he lied about seeing the deed; Gibbons and 

Barrett both testified that White reviewed the deed, and Barrett stated that he saw the deed, as well. In a 

similar vein, Bailey's testimony that she did not personally see Gibbons show White the deed cannot 

support an inference that it did not happen, especially where the remainder of the testimony is to the contrary and there is evidence that Bailey was gathering her belongings while Gibbons was talking to White. 

Finally, Bailey's assertion that Gibbons testified that he only had one copy of the deed—and that that 

copy was at the County Clerk's office on January 14, 2008—is not supported in the record, but rather is 

based on a misinterpretation of Gibbons's testimony. Bailey points to a pair of discussions Gibbons had 

with her counsel about the deed during his deposition. The first is as follows:

FN6. The first and second prongs of Bailey's argument relate to a phantom factual dispute she proffers in 

an effort to defeat summary judgment—her position is that a dispute exists as to how many times the police actually came to the property, when they came to the property, and the correct sequence of events.

According to her submissions, she and Gibbons agree that the police visited the property twice, that they 

left without arresting her after the first visit, and that they arrested her when they returned. This view is 

not supported in the record. In fact, Bailey testified that the police arrested her during their first visit and 

that during the second visit, one of the officers helped her find her keys and then left. (Bailey Dep. 98:2–

3, 110:19–25, 111:1–112:15.) Her testimony largely comports with the version of events offered by the 

officers. They stated that they first went to the property at 9:50 a.m., and that during that incident, they 

arrested Bailey. Subsequently, at 11:06 a.m., they received a call that Bailey was back at the property, 

and White and Johnson returned, only to find that no one was there. (White Interrogs. ¶ 7.)

In his testimony, meanwhile, Gibbons contradicted himself and appeared to mix up the order in which 

the events of January 14, 2008, occurred. Under questioning by Bailey's attorney, he first testified that 

when one of the workers at the property called to tell him Bailey was there, he called the police, took the 

deed out of his file, and then went to the property to meet the police there. When he got there, he showed 

the officers his deed and his driver's license, and told them that he owned the house and that Bailey was 

trespassing. The officers then asked him if he wanted to file a complaint against Bailey, he said he did, 

and the officers began to arrest her before he told them to stop. (Gibbons Dep. 90:16–102–15.) However, 

under questioning by the Englewood defendants' attorney, he later testified that the first call concluded 

when Bailey grabbed some of her things, got in her car and left. Gibbons then went home and received 

another call that Bailey was at the house. He subsequently went to the Englewood police station, showed 

the sergeant his deed and told the sergeant he wanted to file a complaint. Thereafter, he met the officers 

at the property, where Bailey was looking for her keys; after Bailey and one of the officers walked 

through the house looking for the keys, they came outside and the officers began to arrest Bailey before 

Gibbons told them to stop. (Id. 110:2–122:5.)

Gibbons's recollection of the sequence of events clearly cannot be accurate. He testified that the officers 

on the scene when Bailey was arrested were one black officer, one Latino officer, and one white officer 

of a higher rank than the others. (Id. 117:20–24.) This testimony fits a description of White, Gonzalez, 

and Barrett, and fits Bailey's description of the officers who were on the scene for the first call, when she 

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testified that she was arrested. (Bailey Dep. 98:18–23.) Bailey also testified that two black officers reported to the second call, including the black officer from the first call; she identified Johnson as the other black officer, the one who helped her find her keys. (Id. 111:8–111:17, 392:16–19, 395:14–15.) The 

dispatch reports in the record confirm that White, Gonzalez, and Barrett responded to the first call at 9:50 

a.m. and White and Johnson responded to the second call at 11:28 a.m. (Dispatch Reports, attached to 

Bailey Mot. as Exs. 2, 5.) Therefore, despite Gibbons's confusion, the record shows that Bailey was arrested during the officers' first trip to the property.

*11 Q: There was one deed. Did you have more than one version of the deed?

A: Whatever I received in the closing documents is what I have.

Q: And if you received anything subsequent—I'm sorry. Do you have a folder of your legal documents?

A: Yes.

Q: Have you put everything from this closing in the folder to the best of your knowledge?

A: Yes.

Q: Have you discarded anything from that folder since the time of closing?

A: No.

Q: So what you delivered [during discovery] was a complete—all of the documents that you have, correct?

A: Yes.

(Gibbons Dep. 43:20–44:13.)

Bailey's counsel returned to this line of questioning later on.

Q: Is that the deed that you showed to the police officers, a copy of it?

A: I believe it is.

Q: And you only had one copy of the deed, correct, in your possession, the original, the only—

A: I already answered the question.

(Id. 93:8–14.) Nowhere in either of these exchanges did Gibbons say he only had one copy of the deed. 

Rather, he testified that he had a folder into which he put all of the documents from the closing, and he 

turned all of those documents over to Bailey during discovery. He also testified that he showed the police 

officers a copy of the deed. It was Bailey's counsel who said there was only one copy of the deed, not 

Gibbons. To the contrary, Gibbons repeatedly confirmed that he had a copy of the deed with him on January 14, 2008. To wit, he testified that after he got the first call from the workers at the property, he went 

into his file and took the deed out. (Id. 94:21–23.) In addition, he stated that he was sure he had a deed in 

his possession and that before he went to the property on January 14, 2008, he gathered documents, including the deed, that would prove his ownership of the property. (Id. 111:5–13.)

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Even if the Court assumes that Gibbons never showed the deed to the police officers, Bailey's assertion 

that they were not entitled to take Gibbons's word for it is incorrect. To the contrary, “[w]hen an officer 

has received his information from some person—normally the putative victim or an eye witness—who it 

seems reasonable to believe is telling the truth, he has probable cause.” Gramenos, 797 F.2d at 439; see 

also Merkle, 211 F.3d at 790. Even when taken in the light most favorable to Bailey, the evidence shows 

that Gibbons told the police officers that he owned the property and Bailey was trespassing, and Bailey 

failed to respond to the officers' questions or provide documentation entitling her to be there. Therefore, 

the police officers had reasonable grounds to believe that Bailey was not licensed to be on the property 

and that she knew she was not licensed to be there. As such, they had probable cause to arrest Bailey, and 

because no constitutional violation occurred, they are entitled to qualified immunity. In addition, because 

“an arrest based on probable cause [can]not become the source of a claim for false imprisonment,” Groman v. Twp. of Manalapan, 47 F.3d 628, 636 (1995) (citing Baker v. McCollan, 443 U.S. 137, 143–44, 

99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)), the officers are entitled to summary judgment on Bailey's false 

imprisonment claim, as well.

C. Excessive Force

*12 A § 1983 claim of excessive force has its roots in the Fourth Amendment as well, specifically that 

Amendment's bar against unreasonable seizures. Lamont, 637 F.3d at 182. The task for a plaintiff is to 

demonstrate that a seizure occurred and that, under the circumstances, the seizure was unreasonable. Id.

at 183 (citing Graham v. Connor, 490 U.S. 386, 395–96, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Brower v. County of Inyo, 489 U.S. 593, 599, 109 S.Ct. 1378, 103 L.Ed.2d 628, (1989)). “The test of reasonableness under the Fourth Amendment is whether under the totality of the circumstances, ‘the officers' actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard 

to their underlying intent or motivations.' “ Kopec v. Tate, 361 F.3d 772, 776 (3d Cir.2004) (quoting 

Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). Again, the conduct 

must be viewed from the vantage point of a reasonable officer on the scene. Lamont, 637 F.3d at 183. 

“Monday morning quarterbacking is not allowed.” Id. Factors to be taken into account include “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or 

others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U 

.S. at 296. A lack of physical injury does not conclusively establish that the force used was reasonable, 

but because the Constitution protects only against the egregious use of force, physical injury is a relevant 

consideration. Kopec, 361 F.3d at 776.

The force used to arrest Bailey was minimal. Bailey testified that White took hold of her wrists and that 

she did not suffer any injury. He did not squeeze or punch her wrists, he never handcuffed her, and the 

incident lasted only a few seconds. No reasonable officer would have believed White's actions to constitute an excessive use of force, and no reasonable juror would have either. The officers are therefore entitled to qualified immunity on Bailey's excessive force claim.

D. Procedural Due Process

Bailey claims that the police officers deprived her of procedural due process by preventing her from using and occupying the house, which she claims was her right under the Escrow Agreement, and by preventing her from claiming her possessions and allowing Gibbons to destroy them. The Fourteenth 

Amendment guarantee of procedural due process does not protect against deprivations of property in and 

of themselves; rather, it protects against such deprivations that occur “without due process of law.” Parratt v. Taylor, 451 U.S. 527, 537, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds by 

Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (quoting Baker v. McCollan,

443 U.S. 137, 145, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). In Parratt, the Supreme Court held that in situations where it is impractical or impossible for a state to provide predeprivation process, such as when a 

police officer undertakes a random, unauthorized act, a cause of action for deprivation of property without due process of law will not lie under § 1983 if the state provides an adequate postdeprivation remedy. 

Id. at 538, 541. In this case, the alleged deprivation did not occur pursuant to some established state proCase 2:11-cv-03671-WHW-MCA Document 33-1 Filed 05/04/12 Page 37 of 48 PageID: 423
cedure, but was the product of a purported failure by the police officers to follow the appropriate procedure. See supra Part IV. The State of New Jersey provides causes of action for trespass and conversion, 

N.J.S.A. §§ 2A:14–1, 59:3–1, which Bailey could have employed. Indeed, she appears to recognize these 

available remedies, as she states in her briefs that the police officers either converted her property or 

were complicit in Gibbons's conversion. (See Opp'n Br. to Englewood Defs. at 29–31.) While Judge Toskos dismissed Bailey's tort claims against the police officers and the City of Englewood in state court for 

failure to file a notice claim as required by the New Jersey Tort Claims Act (June 12, 2009, Order, attached to Mory Certif. as Ex. C), Bailey nevertheless cannot recover on her procedural due process claim 

because the option to sue in tort was available to her. See Revell v. Port Auth. of N.Y. & N.J., 598 F.3d 

128, 139 (3d Cir.2010), aff'g 2009 WL 901855 (D.N.J. Mar.31, 2009) (Hayden, J.). Therefore, the individual officers are entitled to summary judgment on Bailey's procedural due process claim.

E. Substantive Due Process

*13 In addition to asserting a violation of her procedural due process rights, Bailey also asserts that the 

officers' deprivation of her property violated her substantive due process rights under the Fourteenth 

Amendment. FN7 To establish a substantive due process violation predicated on a deprivation of property, 

a plaintiff “must show that the actions of the officials ‘shock[ ] the conscience.’ “ Papaiya v. City of Union City, 238 F. App'x 848, 850–51 (3d Cir.2007) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 

846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)) (alteration in original). Only “the most egregious government conduct” violates substantive due process. Lewis, 523 U.S. at 846. On the record before the 

Court, no reasonable jury could find that the officers' conduct violated Bailey's substantive due process 

rights. As discussed above, the officers viewed Gibbons' deed and had no knowledge of the Escrow 

Agreement that supposedly gave Bailey the right to stay on the property. In addition, Bailey testified that 

none of the police officers took any of her personal possessions, and in fact, she was allowed to take 

many of her belongings with her when she was told to leave the property. (Bailey Dep. 130:21–23, 

143:11–13, 144:8–19; Gibbons Dep. 114:4–12; Gonzalez Dep. 18:7–13, 23:5–8, 32:10–12; Barrett Dep. 

27:1–6; White Interrogs. ¶ 7; Bailey Reply Certif. of Facts ¶ 114.) This kind of conduct can hardly be 

said to be improper, let alone conscience-shocking. The Englewood defendants are therefore entitled to 

summary judgment on Bailey's substantive due process claim.

FN7. To the extent Bailey seeks to assert Fourteenth Amendment substantive due process claims based 

on her arrest and the officers' use of force, they are subsumed under her Fourth Amendment claims. 

“Where a particular Amendment ‘provides an explicit textual source of constitutional protection’ against 

a particular sort of government behavior, ‘that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.’ “ Albright v. Oliver, 510 U.S. 266, 273, 

114 S.Ct. 807, 127 L.Ed.2d 114(1994) (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 

104 L.Ed.2d 443 (1989)). The Fourth Amendment provides for protection against false arrest and imprisonment, Wright, 409 F.3d at 601, and excessive force, Graham, 490 U.S. at 395.

F. Conspiracy

Bailey alleges that the Englewood defendants conspired to deprive her of her constitutional rights and 

carried out the conspiracy by filing a false police report. This claim invokes 42 U.S.C. § 1985(3), which 

provides that

If two or more persons in any State or Territory conspire ... for the purpose of depriving, either directly or 

indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and 

immunities under the laws; ... in any case of conspiracy set forth in this section, if one or more persons 

engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby 

another is injured in his person or property, or deprived of having and exercising any right or privilege of 

a citizen of the United States, the party so injured or deprived may have an action for the recovery of 

damages occasioned by such injury or deprivation, against any one or more of the conspirators.

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The elements of a cause of action under § 1985 are “(1) a conspiracy; (2) motivated by a racial or class 

based discriminatory animus designed to deprive, directly or indirectly, any person or class of persons to 

the equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or 

property or the deprivation of any right or privilege of a citizen of the United States.” Lake v. Arnold, 112 

F.3d 682, 685 (3d Cir.1997). Notably, an action under § 1985 cannot proceed absent evidence of race- or 

class-based animus, id., and, furthermore, “[b]ecause § 1985 does not itself create any substantive rights 

but acts as a ‘vehicle to vindicate [other] federal rights and privileges,’ [a plaintiff] first must establish a 

violation of [her] constitutional rights in order to have a successful § 1985 claim.” Papaiya, 238 F. App'x 

at 851 (quoting Brown v. Philip Morris, Inc., 250 F.3d 789, 805 (3d Cir.2001)). On this latter point, an 

official who is immune from suit under § 1983 is also immune from suit under § 1985(3). Downey v. 

Coal. Against Rape and Abuse, Inc. ., 143 F.Supp.2d 423, 453 (D.N.J.2001).

*14 Bailey's § 1985(3) conspiracy claim must fail for two reasons. First, she has not alleged any race- or 

class-based animus, and has provided no evidence of it. Her sole argument on this point is the incorrect 

assertion that “the Constitutional Tort claimed does not require the reliance on the Class status.” (Opp'n 

Br. to Englewood Defs. at 33.) Second, as discussed above, the Englewood defendants are entitled to 

summary judgment on Bailey's § 1983 claims. Therefore, her § 1985(3) claim must fall, as well.

VI. Rocco's Appeal of the Magistrate Judge's Order

Defendant Rocco appeals Judge Shwartz's order [D.E. 76] denying her motions (1) to disqualify plaintiff's counsel and (2) for leave to amend her answer to assert a third-party complaint against plaintiff's 

counsel.

Pursuant to L. Civ. R. 72.1(c)(1)(A), “any party may appeal from a Magistrate Judge's determination of a 

non-dispositive matter,” including a motion to disqualify counsel. Tare v. Bank of America, 2009 WL 

90326, at *1 (D.N.J. Jan.13, 2009) (Linares, J.). On appeal, a district court judge examines whether the 

magistrate judge's decision is “clearly erroneous or contrary to law.” L. Civ. R. 72.1(c)(1)(A); Marks v. 

Struble, 347 F.Supp.2d 136, 149 (D.N.J.2004) (Cooper, J.). The party who filed the appeal bears the burden of establishing that the magistrate judge's decision is clearly erroneous or contrary to law. Travelers 

Indem. Co. v. Dammann & Co., 592 F.Supp.2d 752, 758–59 (D.N.J.2008) (Debevoise, J.). “ ‘A finding is 

clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ “ Bobian v. CSA 

Czech Airlines, 222 F.Supp.2d 598, 601 (D.N.J.2002) (Debevoise, J.) (quoting Dome Petroleum Ltd. v. 

Emp'rs Mut. Liab. Ins. Co., 131 F.R.D. 63, 65 (D.N.J.1990)). “A ruling is contrary to law if the magistrate judge has misinterpreted or misapplied applicable law,” id. (citing Gunter v. Ridgewood Energy 

Corp., 32 F.Supp.2d 162, 164 (D.N.J.1998)), and “a magistrate's legal conclusions on a non-dispositive 

motion will be reviewed de novo.” Doe v. Hartford Life & Accident Ins. Co., 237 F.R.D. 545, 548 

(D.N.J.2006) (Linares, J.).

Rocco moved below to disqualify plaintiffs counsel, James Marks, because, she claims, he is likely to be 

a necessary witness at trial. Her assertion invokes New Jersey Rule of Professional Conduct 3.7, which 

provides that

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

(1) the testimony relates to an uncontested issue;

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

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

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“The Rule is designed to prevent a situation in which at trial a lawyer acts as an attorney and as a witness, creating the danger that the fact finder (particularly if it is a jury) may confuse what is testimony 

and what is argument, and otherwise creating an unseemly appearance at trial.” Prods., LLC v. Lacy,

220Main Events F.Supp.2d 353, 357 (D.N.J.2002). Only where an attorney has “crucial information in 

his possession which may be divulged” will he be deemed “likely to be a necessary witness.” Garza v. 

McKelvey, 1991 WL 3302, *3 (D.N.J. Jan.2, 1991).

*15 Motions to disqualify counsel are disfavored because they are viewed as drastic measures. Carlyle 

Towers Condo. Ass'n, Inc., v. Crossland Savings FSB, 944 F.Supp. 341, 345 (D.N.J.1996). “The party

seeking disqualification bears the burden of showing that continued representation by the lawyer

would violate the disciplinary rules.” Oswell v. Morgan Stanley Dean Witter & 

Co., 2007 WL 2446529, at * 3 ( D.N.J. Aug. 22, 2007). Furthermore, the movant “must do more than

simply make representations that a lawyer is a necessary witness for the attorney to be disqualified.” Id. “Indeed, the party seeking to disqualify must put forth evidence that establishes the likelihood that the attorney will be a necessary witness at trial and if it is unclear from the record as to

whether or not the attorney's testimony is necessary, the motion should be denied.” Id. If the information possessed by the attorney can be introduced through other documents or witnesses, the attorney is 

not a necessary witness. Id. at *4.

In her opinion denying Rocco's motion to disqualify, Judge Shwartz found that there existed ample alternative forms of evidence Rocco could use to establish that Marks “was in a position to have filed a notice 

of tort claim on behalf of Ms. Bailey,” by April 14, 2008, and that such evidence could establish that 

Rocco did not proximately cause the failure to timely file a notice of claim. (Op. Tr. 24:2–6.) On appeal, 

Rocco contends that Judge Shwartz failed to recognize that Marks's testimony is vital because it will allow the jury to weigh his credibility. In light of the record evidence on which Judge Shwartz's decision 

was based, Rocco's argument is unpersuasive. Judge Shwartz pointed to a variety of evidence in the record supporting Rocco's defense, including (1) an email from Marks indicating that he knew Rocco was 

no longer Bailey's attorney as of December 2007 (before the police incident); (2) Rocco's testimony that 

her representation of Bailey was limited to marital matters; (3) Rocco's testimony about what she knew 

about the incident; (4) emails demonstrating that Marks represented Bailey as early as March 2008; and 

(5) Marks's testimony at the hearing on the motion to disqualify, which Rocco may employ at trial. (Op. 

Tr. 23–25.) Given this volume of evidence, the Court concludes that Judge Shwartz did not err in concluding that Marks is not a necessary witness, and her denial of Rocco's motion to disqualify Marks is affirmed.

As for Rocco's motion for leave to bring a third-party complaint against Marks, Judge Shwartz treated it 

as a motion to amend the final pretrial order pursuant to Fed.R.Civ.P. 16 because it was not memorialized 

therein and was first raised after the final pretrial order had been entered. A final pretrial order may be 

modified only to prevent manifest injustice. Pharm. Sales & Consulting Corp. v. J.W.S. Delavau, Co., 59 

F.Supp.2d 408, 411 (D.N.J.1999). Whether manifest injustice exists requires inquiry into eight factors: 

(1) the prejudice or surprise in fact to the non-moving party; (2) the ability of that party to cure the prejudice; (3) the extent to which waiver of the rule would disrupt the orderly and efficient trial of the case; 

(4) bad faith and willfulness on the part of the movant; (5) the ability of the movant to have discovered 

witnesses, evidence, claims or defenses earlier; (6) the validity of the excuse offered by the party; (7) the 

importance of the proffered evidence, claims or defenses; and (8) whether the request to amend is a matter of a new strategy or tactic. Scopia Corp. v. Green Tree Mortg. Co., 184 F.R.D. 526, 528–29 

(D.N.J.1998).

*16 Judge Shwartz determined that “there is surprise to the opposing party; there has been no mention of 

how to cure the surprise ...; amendment would disrupt the orderly and efficient trial of the case; Rocco 

could have acted on the evidence underlying the claims earlier; and the importance of the proffered claim 

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is minimal .” (Op. Tr. 30:24–31:6.) Rocco does not challenge the law Judge Shwartz applied, but does 

challenge her application of it. Her contentions, however, are unavailing.

First, while Rocco asserts that there was no surprise because Marks should have known he was potentially liable as a successor attorney, she does not demonstrate any error in Judge Shwartz's finding that Rocco was not given permission to file—and Marks did not expect—a motion for leave to implead him. Second, Rocco's contention, based on Marks's expressions of confidence in his case, that the surprise can be 

cured easily by having another attorney step in is devoid of support. Third, Rocco states that because no 

trial date has been set, a replacement attorney would have time to “get up to speed” (Appellant's Br. at 

16), but this assertion ignores the volume of discovery in this case and the fact that discovery has been 

completed. Fourth, Rocco argues that she did not demonstrate bad faith and did not have an opportunity 

to discover the claim earlier because Bailey's “new” claim was not raised until August 2010, but she does 

not point to any error in Judge Shwartz's determination that the facts underlying the claim were available 

to her well before August 2010. Fifth, Rocco contends that Judge Shwartz made light of the impact of her 

claim. She argues that in addition to any proximate cause defense she might have, Marks may be liable 

for some portion of Bailey's damages under LaBracio Family P'ship v. 1239 Roosevelt Ave., Inc., 340 

N.J.Super. 155, 773 A.2d 1209 (App.Div.2001). Notwithstanding, she fails to account for her ability to 

bring an action for contribution or indemnification. Finally, she takes issue with Judge Shwartz's determination that the motion for leave to amend “smacks of being sought for tactical purposes,” and she 

points to an example of her accommodation of Bailey's claims. Nevertheless, she does not adequately 

explain why, if she learned about the notice of claim issue in August 2010 and had knowledge of facts related to that issue well before then, she declined to seek leave to amend until more than two weeks after 

the entry of the pretrial order. The Court concludes that Judge Shwartz's decision to deny Rocco leave to 

amend was not clearly erroneous or contrary to law, and it is affirmed.

VII. Conclusion

For the foregoing reasons, the summary judgment motion filed by the City of Englewood, Barrett, Gonzalez, and White is granted; Bailey's motion for summary judgment against the City of Englewood, Barrett, Gonzalez, and White is denied; Judge Shwartz's decision to deny Rocco's motions to disqualify 

counsel and for leave to amend is affirmed; the remainder of the summary judgment motions are denied 

without prejudice; and the case is remanded to New Jersey state court. See Parker, 620 F.3d at 276 n. 2. 

An appropriate order will be entered.

D.N.J.,2011.

Bailey v. Gibbons

Slip Copy, 2011 WL 4056202 (D.N.J.)

END OF DOCUMENT

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 95 N.J.L.J. 1145

 November 9, 1972

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 243

Conflict of Interest

Representing Mortgagor and

Mortgagee Representing Vendor and Vendee

 An attorney asks this Committee what would constitute full disclosure of potential 

conflict of interest positions in which he might find himself if he represents, for example, the lender and borrower in a mortgage transaction or the purchaser and seller 

in a real estate transaction. The attorney has proposed forms of letters, of disclosure 

which might be written prior to embarking upon such representation, in an endeavor 

to apprise the prospective clients of the possible conflicts which might arise. Twelve 

possible conflict situations are suggested by the inquirer in a proposed form of letter. 

One might conceive of other possible situations. However, we believe that any such 

form letters would prove more confusing than helpful to an uninformed layman.

 In considering the problem, the bar has for guidance the Supreme Court's opinion 

in In re Kamp, 40 N.J. 588 (1963), in which, the Court cited the Canon of Professional 

Ethics, Canon 6 then part of our court rules, and pointed out that an attorney who primarily represented a vendor of realty as, well as the purchaser, without disclosing 

such fact to the purchaser, violated the canon. The Court stated that the fact that there 

had existed in that transaction no situation which cast doubt upon the advisability of 

the purchaser accepting title did not exculpate the attorney. At page 596, the Court 

pointed out that, where the same attorney represents the purchaser of real estate and 

also the party financing the transaction (such as a bank or savings and loan association), to the extent that both parties seek a marketable title there is no conflict of interest, but that a conflict might

arise concerning the terms of financing and, therefore, it was, the duty of the attorney 

to make clear to the purchaser the potential area of conflict.

 Canon 6 is now superseded by the Disciplinary Rules of the Code of Professional 

Responsibility adopted by our Supreme Court and now part of the Rules Governing 

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the Courts of the State of New Jersey. DR 5-105(C) provides that a lawyer may represent multiple clients if he believes that he can adequately represent the interests of 

each and if each consents to the representation after full disclosure of the facts and of 

the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.

 It seems clear that there is a greater potential danger in the representation by an attorney of a buyer and a seller in a real estate transaction than there is in his representing a lender and a borrower. In the latter transaction, as noted in In re Kamp, supra, 

each side seeks a clear and marketable title and, therefore, there can be no conflict on 

that score. The attorney representing the lending institution is concerned that there be 

no possible cloud on the title and, hence, he is equally protecting both parties.

 With respect to the terms of the financing arrangement between the lending institution and the borrower - the inquirer concerns himself principally with this type of representation, although obviously the same situation might arise between a private lender and a borrower - the attorney rarely enters the picture until these are resolved and 

they generally are specifically set forth in a letter sent to the borrower by the lending 

institution. In re Kamp,

supra. The borrower is asked to sign a copy of the letter approving the terms and return it to the lending institution. The provisions of the mortgage and the note or bond 

will be in accordance with the commitment for the loan originally sent to the borrower.

 It is true that at this stage of the proceedings, where the borrower is represented by 

the lender's counsel, the latter, in drawing the mortgage and note or bonds could depart from the terms of the commitment to the detriment of the borrower, but this is an 

unlikely situation. Mortgagors are now given protection by statute against such things 

as being improperly charged without their consent for obtaining a loan, improper prepayment provisions, changes in interest rate, etc. N.J.S.A. 46:10A and 46:lOB. These 

statutes contain penal provisions. See, also, Federal Reserve Regulation Z, where, under certain circumstances, copies of mortgages, notes and other incitements evidencing indebtedness are required to be given to the borrower.

 While we believe that the better practice would be to have the borrower separately 

represented practical consideration must be given to the cost of one attorney for the 

borrower, rather than two, and the fact that in protecting the lender the attorney will 

also protect the borrower. The possible conflict of interest situation weighed in that 

frame of reference is so minimal as not to require us to find it unethical. An attorney 

for a lending institution may represent both the institution and the borrower, providing, of course, that he makes it plain to the borrower that he is representing the lender 

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also and that, if an unforeseen conflict does arise, he will advise the borrower so that 

the latter can then obtain his own attorney.

 As DR 5-105(C) states, the attorney in each case first must decide that he can 

properly exercise his independent professional judgment on behalf of both sides of the 

transaction. DR 5-105(A), in referring to when a lawyer should decline employment, 

says that he must do so if his independent professional judgment "will be or is likely 

to be adversely affected." Paragraph (C) of that rule uses the language that the lawyer 

may represent multiple clients "if he believes that he can adequately represent the interests of each." Therefore, it is a judgment to be made by each attorney as the situation arises, and any attempt by this Committee to promulgate guidelines would be presumptuous and raise the inference that lawyers could not be trusted to make proper 

decisions under DR 5-105. Lawyers have been put on notice by the Kamp case and by 

decisions of this Committee that they cannot with impunity represent obviously conflicting positions.

 It seems to us that this Committee should not suggest or approve any form of letter 

from attorney to client but that it should be left to each individual attorney to make 

clear to the client that he is representing both parties.

 The inquirer also asks whether the situation would be different if the attorney for 

the lending institution were also one of its directors. We think not. While as a director 

he might pass

upon the loan and its terms, his responsibilities as an attorney are entirely different. See our Opinion 229, 95 N.J.L.J. 81 (1972).

 We do conclude, however, that one attorney should not represent both parties in 

connection with the preparation and execution of a contract of sale. Generally, it is at 

this stage of negotiations for the sale of property that a buyer and a seller have their 

greatest difficulties. Their interests are in conflict if for no other reason than the buyer 

wishes to obtain the property as cheaply as possible and the seller wishes to get the 

highest price. At this juncture, also, there can and frequently do arise disputes concerning fixtures to be left in the premises, assumption

of mortgages, mortgage contingencies, and other matters in which there can be serious 

disagreements, in all of which the interests of the buyer and seller will be diametrically opposed.

 There are many reported cases which illustrate these problems and we cite but 

two, Winter v. Toldt, 32 N.J. Super. 443 (App. Div.

l954), and Clark v. Jelsma, 40 N.J. Super. 58 (App. Div. 1955). While these are both 

suits by real estate brokers, they provide examples of disputes between parties as to 

the provisions of a contract of sale.

 Further difficulties are presented if the same attorney tries to represent both parties 

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at the closing, where there may be disputes about the changed condition of the property between the date of the contract of sale and the closing, adjustments of taxes and 

assessments, and escrow funds. Other matters might be mentioned, but these suffice to 

point up the danger involved. In such situations, the attorney cannot exercise his independent professional judgment in behalf of one client without adversely affecting the 

other. DR 5-105(A).

 We, therefore, conclude that, assuming full disclosure and consent, the practice of 

one attorney representing both the borrower and the lender may present problems in 

some instances, but is not unethical and is not precluded by decisional law and should 

be approached with great caution. However, the representation of a buyer and a seller 

in connection with the preparation and execution of a contract of sale of real property 

is so fraught with obvious situations where a conflict may arise that one attorney shall 

not undertake to represent both parties in such a situation.

* * *

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 113 N.J.L.J. 384

 April 5, 1984

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 527

Conflict of Interest

Dual Representation of Defendant,

Physician, and Defendant Hospital

 The inquirer, "an attorney in the State of New Jersey engaged in the practice of law 

representing plaintiffs in medical malpractice cases" presents the following question:

 Whether the same law firm may represent both defendant physician and defendant hospital in a medical malpractice case without violating DR 5-105.

 In presenting the inquiry he states:

 In many cases with which I have been concerned the same law firm has represented both defendant physician and defendant hospital, and/or two or more physicians, during settlement negotiations and litigation. The ethical problem exists when 

one defendant has contribution rights against the other defendants, or has knowledge 

of malpractice that could lead to an early settlement, which is not disclosed during 

discovery on advice of counsel.

 He submits further:

 ... that when an attorney represents both defendants who may have contribution 

rights against each other, a conflict of interest exists much like the situation where the 

same firm represents both the driver and passenger in an automobile accident. Furthermore, the attorney may become privy to information which verifies the rights of 

one defendant against the other, or information which, while exculpating one defendant completely, inculpates the other. In the former situation there is a clear conflict; in 

the latter, an apparent conflict because the attorney may not advise the client to disclose such information without violating DR 4-101 with regard to the actual tortfeasor.

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 He, therefore, submits that the foregoing would constitute unethical conduct in violation of DR 5-105.

 DR 5-105 is captioned as follows:

 Refusing to Accept or Continue Employment if the Interests of Another Client 

May Impair the Independent Professional Judgment of the Lawyer.

 The Disciplinary Rule contains four subdivisions, Paragraphs (A) through (D). We 

are primarily concerned with Paragraphs (A) and (B), and the extent to which (C) is 

an exception thereto.

 Paragraph (A) is a prohibition against accepting employment "if the exercise of an 

attorney's independent professional judgment in behalf of a client will be or is likely 

to be adversely affected by the acceptance of the proffered employment, except to the 

extent permitted under DR 5-105 (C)."

 Paragraph (B) provides that a lawyer shall not continue multiple employment under 

the same conditions; namely, if the attorney's independent professional judgment in 

behalf of a client will be or is likely to be adversely affected by his representation of 

another client except to the extent permitted under DR 5-105 (C).

 We, therefore, look to Paragraph (C) to determine whether the facts and circumstances in this case, as submitted, come within the exceptions to the general rule.

 DR 5-105 (C) provides as follows:

 In situations covered by DR 5-105 (A) and (B) except as prohibited by rule, 

opinion, directive or statute, a lawyer may represent multiple clients if he believes that 

he can adequately represent the interests of each and if each consents to the representation after full disclosure of the facts and of the possible effect of such representation 

on the exercise of his independent professional judgment on behalf of each.

 The said subsection is clear and unambiguous and defines the standard of conduct 

and the duties and obligations of an attorney in representing multiple clients. Therefore, an attorney who represents a defendant physician or physicians and a defendant 

hospital and who sincerely believes that he can adequately represent the interests of 

each, each of his clients consents to the representation after a full disclosure of the 

facts and of the possible effect of such representation in the exercise of his independent professional judgment on behalf of each, may represent such multiple clients.

 The consent must be an informed consent and must be nothing less than "knowing, 

intelligent and voluntary. Consents must be obtained in such a way as to insure that 

the client has adequate time...to reflect upon the choice..." See In re Dolan, 76 N.J. 1, 

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13 (1978).

 The factual situation described by the inquirer undoubtedly involves the representation of a hospital and a physician or physicians by an attorney who has been retained 

by one or more insurance companies and, therefore, all parties in interest would be litigants and their representatives who are well informed and sophisticated. The weight 

to be given to the consents of such litigants is considerably greater than that usually 

involved in the consents referred to in other cases, such as Dolan. See footnote 1 1

 It is not for this Committee to decide when an attorney should make the decision 

that he can "adequately represent the interests of each," but attorneys should be cautioned that great care should be taken in making this decision so as not to cause unnecessary delay when it later becomes clear that such multiple representation cannot 

continue.

* * *

Footnote: 1 1

The Supreme Court directive set forth in 91 N.J.L.J. 81 (Feb. 8, 1968) specifically 

prohibits representation of conflicting interests even with informed consent in automobile cases. Subsequently, that directive as modified by Supreme Court directive October 8,1970 (93 N.J.L.J. 712) in cases involving husband and wife or parent and 

child.

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