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Joanne Cipressi v. Bristol Borough

February 27, 2012

JOANNE CIPRESSI
PLAINTIFF
v.
BRISTOL BOROUGH, ET AL. DEFENDANT



The opinion of the court was delivered by: David R. Strawbridge United States Magistrate Judge

MEMORANDUM OPINION

Presently before the Court is Plaintiff's "Motion for Disqualification of Christopher P. Gerber, Esquire, Counsel for Defendants Bristol Borough, Arnold Porter, Joseph Moors and Randy Morris" (Doc. 54) ("Pl. Mot."), together with the "Reply of Defendants Borough of Bristol, Arnold Porter, Randy Morris and Joseph Moors to Plaintiff's Motion for Disqualification" (Doc. 59) ("Def. Reply") and "Supplemental Brief of Defendants, Borough of Bristol, Arnold Porter, Randy Morris and Joseph Moors to Plaintiff's Motion for Disqualification and Supplement to Motion for Disqualification" (Doc. 64) ("Supp. Br."). Upon careful consideration of these submissions, Plaintiff's Motion is DENIED without prejudice.*fn1

I. FACTUAL AND PROCEDURAL BACKGROUND:

On April 9, 2010, Joanne Cipressi (alternatively "Plaintiff" and "Cipressi") initiated the lawsuit underlying this Motion with a complaint against Bristol Borough, Arnold Porter (the Borough Chief of Police), Joseph Moors (a Borough Police Sergeant), and Randy Morris (a Borough Police Detective Sergeant) (collectively the "Defendants"), alleging violations of 42 U.S.C. §§ 1983 and 1988. The complaint arose out of an incident in which Bristol Borough Police Officer Samuel Anderson, also named as a defendant, is alleged to have sexually assaulted Plaintiff. Among the claims presented are those brought pursuant to Monell v. City of New York Dept. of Soc. Servs., 436 U.S. 658 (1978), which sets out the standard for local government liability under § 1983. (See Complaint (Doc. 1), Count II, ¶64 through 71.) The specific Motion before us focuses upon certain interactions that took place between Christopher P. Gerber, Esquire ("Gerber"), who was acting as counsel for Defendants, and Police Officer Ritchie Webb ("Webb"), who was an "officer in charge" during the early morning hours of August 29, 2008 when Anderson allegedly committed the sexual assault upon Cipressi.

Following the initiation of the suit and his appointment as counsel for Defendants, Gerber called Webb to discuss the case. On May 10, 2010, and again on September 13, 2010, he followed up with face-to-face meetings. Cipressi asserts that during these meetings, Gerber: attempted to persuade Webb to change his testimony regarding his recollection of the events involving Anderson and plaintiff Cipressi, and the sexual activities involving other officers as well as other inappropriate and illegal conduct by BBPD officers and supervisors. (Pl. Mot. at ¶11.c.) Cipressi also asserts that these attempts were not productive and that "Webb made it absolutely clear to Gerber that he was not going to 'lie for anyone.'" (Id. at ¶11.e.)

In April 2011, Gerber was notified that plaintiff was seeking Webb's deposition. Gerber wrote to the officer advising him of the deposition notice and stated in the body of the letter that "[n]either I nor anyone in my office will be representing you at the deposition." (Id. at ¶11.h.)*fn2

Webb became upset upon receiving this letter given his concern over what he saw as Gerber's misconduct and stated his "displeasure" in front of Borough Police Sergeant William Lutz. Plaintiff asserts that Webb was then accused on the same evening of threatening that he would "shoot someone" (whom Plaintiff states "on information and belief" was to have been Gerber) and that he became the subject of a police inquiry which led to his suspension for over 11 weeks. According to Plaintiff, Webb was ultimately exonerated, save only that he was disciplined for "conduct unbecoming of an officer."*fn3 (Id. at ¶11.p.)

It is Plaintiff's submission that Gerber, along with Officer Moors and Chief Porter, "harassed, threatened and retaliated against [Webb] in an attempt to damage his reputation," (id. at ¶12) because Webb provided information to Gerber that was unhelpful to the Defendants' case. Plaintiff claims that Gerber and members of the Borough Police Department retaliated against Webb and that Gerber "personally and actively" was involved in "subverting plaintiff's Constitutional right to a jury trial by engaging in conduct equivalent to the spoliation of evidence by attempting to influence a key witness for plaintiff whose testimony fully supports plaintiff's Monell claim against Defendant Bristol Borough." (Id. at ¶14). As Plaintiff sees it, Gerber's attempted interference renders him "a substantial witness in plaintiff's underlying case." (Id. at ¶15). Finally, Plaintiff asserts that Gerber's interests are in opposition to those of the Defendants that he represents on the theory that he has an interest in "transferring blame for the retaliation on the Borough and denying his own involvement." (Id. at ¶18.) Accordingly, she reasons that "[n]either Gerber nor the law firm of Siana, Bellwoar & McAndrew, LLP are appropriate counsel for Defendants...and therefore, should be disqualified by the Court." (Id. at ¶19.)

On December 28, 2011, Plaintiff filed a supplement to the Motion (Doc. 58) ("Supp. Mot."), in which she points out that Officer Webb has now filed his own complaint against the Borough, Chief Porter, Sergeant Moors, Detective Sergeant Morris, Borough Mayor Robert Lebo, Borough Council President Ralph Diguiseppi, Jr., several other individual Borough Police Officers, as well as Gerber and his law firm. In that supplemental motion, Plaintiff reaffirms her position that Gerber's interest is in conflict with that of his clients and argues that the "Pennsylvania Rules of Professional Conduct mandate that he may no longer represent those defendants." (Supp. Mot. at ¶7).*fn4

II. STANDARD OF REVIEW:

Our Court, which applies the Pennsylvania Rules of Professional Conduct, has the authority to disqualify counsel if the facts of a particular case warrant that disqualification is necessary to enforce and serve the intended goals of an applicable disciplinary rule. See Loc. R. Civ. P. 8.36 (Rule IV(B)) (2011). See also Roberts v. Ferman, 2011 WL 4381128, at *2 (E.D. Pa. Sept. 16, 2011). It is the case, however, that motions to disqualify are generally disfavored given that they seek to deprive parties of their choice of counsel and may be motivated by improper tactical considerations. Capriotty v. Bell, 1991 WL 22134, at *2 (E.D. Pa. Feb. 19, 1991) (citing Hamilton v. Merrill Lynch, 645 F. Supp. 60, 61 (E.D.Pa.1986)). Disqualification is "an extreme sanction that should not be imposed lightly." Reg'l Emp'rs' Assurance Leagues Voluntary Emps.' Beneficiary Ass'n Trust v. Castellano, 2009 WL 1911671, at *2 (E.D. Pa. July 1, 2009) (internal quotations omitted). The party seeking to disqualify opposing counsel must make a clear showing that continued representation would be impermissible and that disqualification is "necessary." See Cohen v. Oasin, 844 F. Supp. 1065, 1067 (E.D. Pa. 1994) (citing Commercial Credit Loans, Inc. v. Martin, 590 F. Supp. 328, 335-36 (E.D. Pa. 1984)). Vague and unsupported allegations are insufficient to meet this burden. Id.

III. DISCUSSION:

In support of her position, Plaintiff relies upon Pennsylvania Rules of Professional Conduct 3.7 and 1.7. With respect to Rule 3.7, plaintiff sets out that Gerber should be disqualified because he has engaged in conduct that renders him a "key witness in the trial itself." (See Pl. Mot. at ¶19; 7-8.) Rule 3.7 states that:

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


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