United States District Court, E.D. Pennsylvania
JOSEPH A. O'KEEFE, ET AL.
ACE RESTAURANT SUPPLY, LLC, ET AL.
BARCLAY SURRICK, J.
before the Court is Plaintiffs' Combined Motion and
Memorandum to Disqualify James Christopher Froelich, Esq.
from Representing Defendants at Trial. (ECF No. 32.) After
review of Plaintiffs' Combined Motion and Memorandum,
Defendants' Memorandum of Law in Opposition thereto (ECF
No. 36), and the applicable law, Plaintiffs' Motion will
relevant factual background to this case was put forth in our
January 11, 2016 Memorandum and Order denying Defendants'
Motion to Dismiss. (ECF No. 12.) Plaintiff Joseph O'Keefe
is the owner of Plaintiff Simmeria Café & Bistro
(“Simmeria”). Defendants Korey and Nick Blanck
own Defendant Ace Restaurant Supply. Ace sells bar and
restaurant equipment in Pennsylvania as well as other states
through its website.
February 2010, O'Keefe called Korey Blanck and inquired
about buying supplies for Simmeria, his new restaurant. On
February 12, 2010, Plaintiffs and Defendants executed a sales
agreement for $20, 602.16. (Compl. ¶ 15; Ex. A, ECF No.
1.) The agreement was faxed from Korey Blanck to O'Keefe.
Plaintiffs allege that they entered into the contract based
on false representations made by Korey Blanck and Ace's
website that Defendants could provide Plaintiffs with their
equipment needs. On March 16, 2010, Plaintiffs and Defendants
entered into another sales contract for equipment worth $4,
672.48. (Id. ¶ 16; Ex. B.) Plaintiffs made a
total payment to Defendants of $35, 803.62 in advance, an
amount which presumably includes additional fees not itemized
in the Complaint.
allege that after they made this payment, the “true
face of [Defendants'] operation began to unravel.”
(Id. ¶ 18.) Defendants failed to deliver a
grill and an oven that Plaintiffs ordered. Plaintiffs
unsuccessfully pressed Defendants with regard to the
whereabouts of their purchases. Defendants either ignored
Plaintiffs' calls or responded with dishonest excuses.
For instance, in March and April 2010, Korey Blanck
repeatedly assured O'Keefe that he had ordered the oven
and that the manufacturer was at fault for the delay.
O'Keefe then called the manufacturer and was told that
Defendants had never ordered the oven. (Id. ¶
21.) When Defendants did make deliveries, they shipped
equipment that was broken and useless. Plaintiffs allege that
Defendants were aware that the equipment failed to meet their
needs, but nevertheless proceeded with the deliveries with
the intent to defraud them. (Id. ¶ 22.)
20, 2010, O'Keefe sent a letter demanding that Defendants
either deliver all of the missing and broken equipment or
refund the money. (Id. ¶ 23; Ex. C.) The next
day, Korey Blanck responded with a letter in which he
disputed O'Keefe's portrayal of their business
transactions and refused to refund any money. (Compl. ¶
24; Ex. D.)
claim that Defendants' deceitful behavior was
characteristic of the way they conducted business.
(Id. ¶ 27.) Plaintiffs allege in their
Complaint that Defendants regularly made fraudulent
misrepresentations regarding equipment that they never
intended to deliver. In Plaintiffs' Response to
Defendants' Motion to Dismiss, they attached two state
court complaints filed against Defendants that allege similar
conduct. (Pls.' Resp. Exs. A-B, ECF No. 8.) We considered
these public records as part of the pleadings. One of the
complaints was filed in the Court of Common Pleas of Berks
County, and alleges that Defendant Ace misrepresented the
character of a fryer that the plaintiff in that action bought
from Ace. (Id. at Ex. A.) The plaintiff in that
litigation had purchased the fryer on September 16, 2009. The
other state court complaint against Defendants alleged that
on June 20, 2008, the plaintiffs in that matter entered into
a sales agreement with Defendants to purchase certain
restaurant supplies. (Id. at Ex. B ¶ 7.) The
plaintiffs there alleged that Defendants breached the
contract and committed fraud by failing to deliver and
install the items in the agreement.
February 25, 2011, Plaintiffs filed a Complaint against
Defendants alleging a violation of the Racketeer Influenced
and Corrupt Organizations Act (“RICO”), 18 U.S.C.
§ 1962(c) (Count I), a RICO conspiracy claim,
id. § 1962(d) (Count II), and state law claims
of fraud (Count III), unjust enrichment (Count IV),
intentional misrepresentation (Count V), and negligent
misrepresentation (Count VI). Plaintiffs also sought
declaratory relief (Count VII).
December 29, 2016, Plaintiffs filed the instant Motion to
Disqualify Counsel, James Christopher Frelich, Esq.
(Pls.' Mot., ECF No. 32.) That same day, Defendants filed
motions in limine to preclude any and all evidence of actions
filed against Defendants. (ECF Nos. 33-34.) On January 16,
2017, Defendants filed their Response in Opposition to
Plaintiffs' motion in limine. (ECF No. 35.) On January
18, 2017, Defendants filed their Response in Opposition to
Plaintiffs' Motion to Disqualify Counsel. (Defs.'
Resp., ECF No. 36.)
83.6 of the Local Rules of Civil Procedure for the Eastern
District of Pennsylvania provides the Rules of Attorney
Conduct. Rule IV(B) provides, inter alia, that “[t]he
Rules of Professional Conduct adopted by this court are the
Rules of Professional Conduct adopted by the Supreme Court of
Pennsylvania.” Under these rules, the court has the
authority to disqualify counsel if the facts of the
particular case suggest that disqualification is necessary to
enforce the intended goal of the applicable disciplinary
rule. Of course, “[t]he district court's power to
disqualify an attorney derives from its inherent authority to
supervise the professional conduct of attorneys appearing
before it.” Adeniyi-Jones v. State Farm
Mut. Auto. Ins. Co., No. 14-7101, 2016 WL 3551486, at
*2-3 (E.D. Pa. June 30, 2016) (internal quotation marks
omitted); see United States v. Miller, 624 F.2d
1198, 1201 (3d Cir. 1980) (citing Richardson v. Hamilton
Int'l Corp.,469 F.2d 1382, 1385-86 (3d Cir. 1972)).
However, a motion to disqualify counsel should be granted
“only when [the Court] determines, on the facts of the
particular case, that disqualification is an appropriate
means of enforcing the applicable disciplinary rule.”
Reg'l Employers' Assur. Leagues Voluntary
Employees' Beneficiary Ass'n Trust v.
Castellano, No. 03-6903, 2009 WL 1911671, at *2 (E.D.
Pa. July 1, 2009) (quoting Miller, 624 F.2d at
1201). In making such a determination, the district court
“should consider the ends that the disciplinary rule is
designed to serve and any countervailing policies, such as
permitting a litigant to retain the counsel of his choice and
enabling attorneys to practice without excessive
restrictions.” Id. Even if a court finds that
an attorney violated a disciplinary rule, however,
“disqualification is never automatic.”
Id. In fact, motions to disqualify are unusual and
are generally disfavored given that they seek to deprive
parties of their choice of counsel and may be motivated by
improper tactical considerations. Cipressi v. Bristol
Borough, No. 10-1584, 2012 WL 606687, at *2 (E.D. Pa.
Feb. 27, 2012); Wolf, Block, Schorr & Solis-Cohen
LLP, No. 05-6038, 2006 WL 680915, at *1 (E.D. Pa. Mar.
9, 2006) (“[M]otions to disqualify opposing counsel are
disfavored . . . not only because disqualification robs
one's adversary of her counsel of choice, but also
because of the risk . . . that one could subvert the ethical
rules in an attempt to use ...