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Steve Davis v. Living Trust of Michael J. Fitzgerald

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA


April 29, 2013

STEVE DAVIS, PLAINTIFF(S),
v.
LIVING TRUST OF MICHAEL J. FITZGERALD, ET AL., DEFENDANT(S).

The opinion of the court was delivered by: Nancy J. Koppe United States Magistrate Judge

ORDER DENYING MOTION TO DISQUALIFY THE (Docket No. 21)

Pending before the Court is Plaintiff's motion to strike filings by Mark Simons, which the Court construes as a motion to disqualify Mr. Simons as attorney for Defendant Living Trust of Michael J. Fitzgerald ("Defendant"). See Docket No. 21. Defendant filed a response, Docket No. 26, and Plaintiff did not file a reply. The Court finds the matter properly resolved without a hearing. Local Rule 78-2. For the reasons discussed below, the motion is DENIED.

Plaintiff seeks Mr. Simons' disqualification pursuant to Nevada Rules of Professional Conduct 1.7 and 1.9. See Mot. at 4-5.*fn1 Plaintiff bears the burden of establishing that he has standing to bring the motion to disqualify. Liapis v. Dist. Ct., 282 P.3d 733, 737 (Nev. 2012). Because Plaintiff is not and has never been Mr. Simons' client, see Simons Decl. ¶ 3, he has failed to establish standing to seek disqualification. Liapis, 282 P.3d at 737.*fn2

Plaintiff also appears to seek Mr. Simons' disqualification pursuant to Nevada Rule of Professional Conduct 3.7, which outlines rules where an attorney is likely to be a necessary witness.

Mot. at 6. This argument also fails. Among other deficiencies in the motion, Plaintiff fails to identify the information he would seek from Simons that is not available from another source. See Code v. Teachers Ins. & Annuity Ass'n, 2010 WL 2674030, *1 (D. Nev. June 30, 2010). Moreover, even if Plaintiff had provided the relevant information under the Rule, the Rule does not mandate complete disqualification of counsel, but instead only disqualification from appearing as trial Id.

For the reasons discussed above, the pending motion is hereby DENIED. IT IS SO ORDERED.


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