Free Response in Opposition to Motion - District Court of Arizona - Arizona

Andrew Thomas M ARICOPA C OUNTY A TTORNEY Daniel R. Brenden, Bar #016395 Mary C. Cronin, Bar #010816 Division of County Counsel 222 North Central Avenue, Ste. 1100 Phoenix, Arizona 85004-2206 (602) 506-8541 Eileen Dennis GilBride, Bar #009220 J ONES, S KELTON & H OCHULI, P.L.C. 2901 North Central Avenue, Ste. 800 Phoenix, Arizona 85012 (602) 263-1700 Attorneys for Defendants Maricopa County Department of Transportation, Medlin, Peterson and Ramsey IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Scott M. McNair, Plaintiff, vs. Maricopa County Department of Transportation; Kenneth Medlin; Terry Peterson; Jennipher Ramsey; State of Arizona Personnel Board, Defendants. RESPONSE IN OPPOSITION TO MOTION TO COM PEL WITHDRAWAL OF COUNSEL GILBRIDE No. CIV03-2119-PHX-NVW

Defendants oppose Plaintiff's motion to compel the withdrawal of Defendants' counsel, Ms. GilBride. Motions to disqualify opposing counsel should be resolved with extreme caution because they may be used abusively as a litigation tactic, when, for example, a movant is facing a formidable opponent. Nelson v. Green Builders, Inc., 823 F. Supp. 1439 (E.D.Wis. 1993). Only in extreme circumstances should a party to a lawsuit be allowed to interfere with the attorney-client relationship of his opponent. Research Corp. Technologies, Inc. v. Hewlett-Packard Co., 936 F.Supp. 697, 701 (D. Ariz.,1996), citing Alexander v. Superior Court, 141 Ariz. 157,161, 685 P. 2d 1309, 1313

Case 2:03-cv-02119-NVW

Document 78

Filed 10/25/2005

Page 1 of 3

(1984). The burden should be upon the moving party to show sufficient reason why an attorney should be disqualified from representing his client. Id. Plaintiff has not met that burden, either legally or factually. Legally, the criminal law authorities he cites (Motion at 3) are not applicable to this civil lawsuit. And he cites no applicable civil authority for his position. Factually, while Plaintiff claims that undersigned counsel cannot control her own case load (Motion at 3), Plaintiff has no standing to complain about the relationship between Defendants and their counsel. Furthermore, the record fails to support the assertion. Defendants' summary judgment Reply was filed well within the extended deadline set by the Court for filing that pleading. Nor is Plaintiff's fear of having to pay "racked up legal fees" if he loses his case a reason to disqualify counsel (Id. at 4). If Plaintiff is afraid of losing his case and paying legal fees, then he should seek the Court's permission to voluntarily dismiss his lawsuit. Finally, Plaintiff's suggestion that undersigned counsel has some kind of "personal or financial relationship with the Court" (Motion at 4) is factually and legally spurious. The assertion does nothing more than bespeak the frivolousness of the entire motion. CONCLUSION Defendants have not complained about the conduct or skill of their counsel and the record shows no reason to compel her withdrawal. The Court should deny Plaintiff's motion. RESPECTFULLY SUBMITTED this 25th day of October, 2005. J ONES, S KELTON & H OCHULI, P.L.C.

By /s/ Eileen Dennis GilBride Eileen Dennis GilBride 2901 North Central Ave., Ste. 800 Phoenix, Arizona 85012 Co-Counsel for the County Defendants

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ORIGINAL electronically filed this 25th day of October, 2005, with: Clerk of the Court U.S. District Court of Arizona 401 West Washington Street Phoenix, Arizona 85003 and copy delivered the same day to: Honorable Neil V. Wake United States District Court Judge 401 W. Washington Phoenix, AZ 85003 and copy mailed the same day to: Scott M. M cNair 5401 North Black Canyon Highway Phoenix, Arizona 85015 Plaintiff/appellant Pro Per and copies electronically delivered the same day to: Andrew Thomas M ARICOPA C OUNTY A TTORNEY Daniel R. Brenden, Bar #016395 Mary C. Cronin, Bar #010816 Division of County Counsel 222 North Central Avenue, Ste. 1100 Phoenix, Arizona 85004-2206 Attorneys for the County Defendants Craig Mousel Sunberg & Mousel 934 West McDowell Road Phoenix, Arizona 85007 Attorneys for Arizona State Personnel Board /s/ Eileen Dennis GilBride

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