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Bracey v. Horry County Council

United States District Court, D. South Carolina

November 13, 2017

Adam Bracey, Plaintiff,
v.
Horry County Council, Harold Worley, Mark Lazarus, Bill Howard, Jimmy Washington, Gary Loftus, Tyler Servant, Cam Crawford, Harold Phillips, Johnny Vaught, et al., Defendants.

          ORDER

          Thomas E. Rogers, III United States Magistrate Judge

          This is an action filed by a pro se non-prisoner litigant. Under Local Civil Rule 73.02(B)(2) of the United States District Court for the District of South Carolina, pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.

         Plaintiff is associated with a group of Plaintiffs who claim prior employment with or ownership of the business Skydive Myrtle Beach. These individuals each filed actions based on the same claims and facts against the same sixty-six defendants. See Davis v. Horry County Council, et al, No. 4:17-391-RBH-TER; Herdt v. Horry County Council, et al, No. 4:17-392-RBH; Karahalios v. Horry County Council, et al, No. 4:17-393-RBH-TER; Ringley v. Horry County Council, et al, No. 4:17-395-RBH-TER; Holly v. Horry County Council, et al, No. 4:17-396-RBH-TER; Herzog v. Horry County Council, et al, No. 4:17-398-RBH-TER; Boulineau v. Horry County Council, et al, No. 4:17-394-RBH; Dron, v. Horry County Council, et al, No. 4:17-397-RBH; Bracey, v. Horry County Council, et al, No. 4:17-399-RBH-TER; Guillen v. Horry County Council, et al, No. 4:17-400-RBH; Clarke v. Horry County Council, et al, No. 17-401-RBH-TER.

         Numerous motions, both dispositive and non-dispositive, have been filed in this action. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), DSC.

         Plaintiff's Motion to the Court of Defendants Counsel for RVA and its Employees T. McRoy Shelley for Improper Representation (ECF No. 59)

         Defendants Robinson Aviation, Richard Allen, Jack Griffin, Glenn Ray, Bill Tiller, and Phil Zell filed a Motion to Dismiss (ECF No. 37) through their counsel, T. McRoy Shelley, III. In the present motion, Plaintiff asks the court to order Mr. Shelley to “comply with the court's rules by entering his appearance if he/she wishes to represent those clients and to properly notify the Plaintiff of their representation.” Motion (ECF No. 59) p. 1. Plaintiff does not mention the court rules to which he is referring. Nevertheless, Mr. Shelley's filing of the Motion to Dismiss, in which he included his address, email address, and telephone number, see Fed.R.Civ.P. 11(a), is sufficient to put this court, Plaintiff, and all other parties in this matter on notice that Mr. Shelley represents these Defendants. Accordingly, Plaintiff's motion is denied.

         Plaintiff's First Motion to Strike (ECF No. 61)

         In his first Motion to Strike (ECF No. 61), Plaintiff asks the court “to strike in part the Defendants response motion and opposition to Plaintiff's motion for extension of time.” Motion (ECF. No. 61) p. 1. As is the case for most, if not all, of Plaintiff's filings, he fails to specifically identify the filings to which he is referring with a docket number or by stating which Defendants filed the document. As an initial matter, the only Motion for Extension of Time (ECF No. 34) filed by Plaintiff was granted, see Text Order (ECF No. 51) prior to Plaintiff's Motion to Strike.

         Therefore, the Motion to Strike is moot in that respect.

         Next, it appears that the “response motion” to which Plaintiff refers is a motion to dismiss, although three Motions to Dismiss (ECF Nos. 21, 37, 45) had been filed at the time Plaintiff filed his motion to strike. Nevertheless, regardless of which motion Plaintiff is addressing, the relief he seeks is improper. Plaintiff asks the court to strike, under Fed.R.Civ.P. 12(f), “any part of their response motion that has nothing to do with the Plaintiff (striking the part of Amanda Boulineau which has nothing to do with this Plaintiff) and any statements about emotional stress or in any manner that has to do with financial burdens.” Motion (ECF No. 61) p. 2. However, Rule 12(f) motions apply to pleadings only and are not available to strike material contained in motions. See Fed.R.Civ.P. 12(f); Pilgrim v. Trustees of Tufts College, 118 F.3d 864, 868 (1st Cir. 1997).[1] As a practical matter, it appears that Plaintiff is using this motion to strike to oppose a motion to dismiss, and the proper vehicle for such opposition in most occasions is a response to the motion, not a separate motion. For these reasons, Plaintiff's first motion to strike is denied.

         Plaintiff's Motion to Disqualify Counsel (ECF No. 66) and Second Motion to Strike (ECF No. 64)

         In these motions, Plaintiff seeks to disqualify Mike Battle as counsel for Horry County Council, Harold Worley, Mark Lazarus, Bill Howard, Jimmy Washington, Gary Loftus, Tyler Servant, Cam Crawford, Harold Phillips, Johnny Vaught, W. Paul Prince, Jody Prince, Al Allen, Pat Apone, Jason Terrei, Charles Bree, Chad Cox, Jack Teal, Tim Jackson, Randall Smith, Sarah Glanders, Kirk Lovell, Lisa Bourcier, Chris Eldridge, Randolph Haldi, Arrigo Carotti, Frank Venegas, and HCDA (the Horry County Defendants) and to strike any filings made by Battle.

         Plaintiff argues that a conflict of interest exists between Plaintiff and Battle “due to his acts of perjury in the lower courts.” Motion (ECF No. 66) p. 1. Plaintiff asserts that Battle lied during eviction proceedings by stating that the lease held by SkyDive Myrtle Beach had expired and had not been renewed when Battle knew that Skydive Myrtle Beach held a valid lease agreement. Thus, Plaintiff argues, he plans to depose Battle and other employees of his firm in this action. Plaintiff also asserts that a conflict of interest exists between some of Battle's clients, namely between Horry County Council and its members and the Horry County Department of Airports (HCDA) and its employees. Plaintiff appears to argue that a conflict exists because these are two different entities of government “that conspired together.” “A motion to disqualify counsel is a matter subject to the court's general supervisory authority to ensure fairness to all who bring their case to the judiciary for resolution.” Clinton Mills, Inc. v. Alexander & Alexander, Inc., 687 F.Supp. 226, 228 (D.S.C.1988). “The South Carolina Code of Professional Responsibility sets forth the ethical standards for attorneys who practice in this district.” Reeves v. Town of Cottageville, No. 2:12-CV-02765-DCN, 2014 WL 4231235, at *1 (D.S.C. Aug. 26, 2014) (citing Local Civil Rule 83.I.08 DSC, RDE Rule IV(B) (“The Code of Professional Responsibility adopted by this Court is the South Carolina Rules of Professional Conduct ... adopted by the Supreme Court of the State of South Carolina....”)).

         Rule 3.7 of the South Carolina 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 ...

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