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Valizadeh v. Doe

United States District Court, D. South Carolina, Columbia Division

January 10, 2017

DARYUSH VALIZADEH, Plaintiff,
v.
JANE DOE a/k/a “Susan” and JOHN AND JANE DOES 2-10, all whose true names are unknown, Defendants.

          MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO DISQUALIFY COUNSEL

          MARY GEIGER LEWIS UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This is a defamation case in which Plaintiff alleges third-party subpoena recipient Jane S. Gari (Gari) posted a story (the Story) on her website wrongfully accusing Plaintiff of raping Defendant Jane Doe a/k/a “Susan” (Susan). The Court has jurisdiction over this matter under 28 U.S.C. § 1332.

         Pending before the Court is Plaintiff's Motion to Disqualify (Motion to Disqualify) Gari's counsel, Wallace Lightsey (Lightsey) and the Wyche Law Firm (Wyche). Having carefully considered the motion, the response, the reply, the record, and the applicable law, it is the judgment of the Court Plaintiff's Motion to Disqualify will be denied.

         II. FACTUAL AND PROCEDURAL HISTORY

         This case arises out of Gari's posting of the Story on her website. Plaintiff maintains the accusation he raped Susan is false. Plaintiff has asserted claims against Susan and John and Jane Does 2-10 for defamation and false light in connection with the Story. ECF No. 1.

         Plaintiff's prior counsel, Marc Randazza, wrote a letter to Gari on or about February 16, 2016, threatening Plaintiff would file suit against her if she failed to retract the Story within seven days. ECF No. 14-1. Gari contacted Lightsey regarding this matter on June 17, 2016. ECF No. 22 at 3. Lightsey agreed Wyche would represent Gari in this case on a pro bono basis. Gari signed and returned a formal engagement letter to Lightsey on June 27, 2016. Id.

         On July 7, 2016, Plaintiff's attorney Jay Wolman (Wolman) called and left a voicemail for Wyche attorney Tally Parham Casey (Casey) about a possible engagement in a case. Id. at 3-4; ECF No. 14 at 3. Wolman and Casey discussed the possibility of Wyche's serving as local counsel for Plaintiff in this matter in a telephone conference on July 11, 2016. ECF No. 14 at 3-4; ECF No. 22 at 4. Wolman subsequently emailed Casey on July 11, 2016, and provided Plaintiff's and Gari's names “[f]or conflict purposes” and requested a fee agreement “[i]f there is no conflict.” ECF No. 14-7. Casey responded on that same day with applicable hourly rates and stated, “I hope we get the opportunity to work together.” Id. On July 12, 2016, however, Casey sent Wolman an email stating, “I'm afraid we have a conflict and will not be able to assist you with this matter.” ECF No. 14-8.

         Plaintiff originally filed this action in South Dakota, but he voluntarily dismissed it. ECF No. 14-6, ¶ 4; ECF No. 22-4, ¶ 5. Plaintiff filed his Complaint with this Court on September 13, 2016. ECF No. 1.

         On September 15, 2016, Plaintiff filed an Ex Parte Motion for Leave to Take Early Discovery (Ex Parte Motion) in which he sought permission to serve subpoenas on certain individuals, including Gari, who Plaintiff believed had information that would allow him to identify the Doe Defendants. ECF No. 5. The Court issued an Ex Parte Order granting the Ex Parte Motion on October 26, 2016. ECF No. 9.

         After Plaintiff served a subpoena on Gari, Lightsey filed a Motion to Quash Subpoena, Vacate Ex Parte Order, and Reopen Record on Plaintiff's Motion for Early Discovery on December 2, 2016. ECF No. 10. Plaintiff filed his Motion to Disqualify on December 8, 2016. ECF No. 14. On December 14, 2016, Gari filed a response in opposition to Plaintiff's Motion to Disqualify, ECF No. 22, and Plaintiff filed a reply on December 20, 2016, ECF No. 27. The Court, having been fully briefed on the relevant issues, is now prepared to discuss the merits of Plaintiff's Motion to Disqualify.

         III. STANDARD OF REVIEW

         “The drastic nature of disqualification requires that courts avoid overly-mechanical adherence to disciplinary canons at the expense of litigants' rights freely to choose their counsel; and that they always remain mindful of the opposing possibility of misuse of disqualification motions for strategic reasons.” Shaffer v. Farm Fresh, Inc., 966 F.2d 142, 146 (4th Cir. 1992) (citing Woods v. Covington Cty. Bank, 537 F.2d 804, 813 (5th Cir. 1976)). The disqualification of a party's chosen counsel is a serious matter that should be undertaken only upon a showing by the moving party that an “actual or likely” conflict of interest exists, rather than a mere imagined or improbable conflict. See Richmond Hilton Assocs. v. City of Richmond, 690 F.2d 1086, 1089 (4th Cir. 1982).

         A motion to disqualify counsel is subject to the Court's supervisory authority to ensure fairness in all judicial proceedings. Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir. 1975). This Court will apply the South Carolina Rules of Professional Conduct ...


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