Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dear v. Crown Castle South, LLC

United States District Court, S.D. Mississippi, Northern Division

June 9, 2016

Billy Dear, et. al., Plaintiffs
v.
Crown Castle South, LLC; et. al., Defendants

         2016 WL 7985436

          Attorneys and Law Firms C. Victor Welsh, III, Pittman, Germany, Roberts & Welsh, LLP, Jackson, MS, James L. Kelly, Kelly Law Office, PC, Brandon, MS, for Plaintiffs.

          William Davis Frye, George Clanton Gunn, IV, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Frances R. Shields, James D. Boone, Edward J. Currie, Jr., Whitman B. Johnson, III, Currie, Johnson, Griffin & Myers, PA, James L. Warren, III, Alexandra F. Markov, J. Chadwick Mask, James W. Gunn, III, Carroll, Warren & Parker, PLLC, Bailey R. Fair, James J. Crongeyer, Jr., Watkins & Eager, PLLC, Jackson, MS, Jared A. Davidson-PHV, Jason Daniel Bone, Taylor, Wellons, Politz & Duhe, APLC, New Orleans, LA, Gordon Urban Sanford, III, Adams and Reese, LLP, Ridgeland, MS, for Defendants.

          OPINION AND ORDER

          WILLIAM H. BARBOUR, JR., UNITED STATES DISTRICT JUDGE

         1. This cause is before the Court on several motions seeking review of Orders entered by United States Magistrate Judge Robert H. Walker. Having considered the pleadings, the underlying Orders, as well as supporting and opposing authorities, the Court finds:

Plaintiffs' Objection to Judge Walker's Order regarding disqualification of counsel is not well taken, and should be denied.
Plaintiffs' Objection to Judge Walker's Order denying reconsideration of discoverability of net worth is not well taken, and should be denied.
Plaintiffs' Objection to Judge Walker's Order denying their motion to compel the production of joint defense agreements and/or a privilege log is not well taken and should be denied.
Plaintiffs' Objection to Judge Walker's Protective Order regarding deposition testimony is not well taken and should be denied.

         I. Factual Background and Procedural History

         An easement was obtained over property belonging to Chancellor Funeral Home, LLC (“Chancellor”) for the purpose of allowing AT&T Mobility LLC (“ATTM”) to install conduit and fiber optic cable to a cellular tower that was also located on the Chancellor property. The cellular tower is owned by Crown Castle South, LLC (“Crown Castle”). ATTM and MasTec Network Solutions, LLC (“MasTec”) entered a contract under which the latter served as the general contractor for laying the conduit that would house the fiber optic cable. MasTec subcontracted with SES Construction Consulting Group, Inc. (“SES”), which dug the trench and laid the conduit. After the conduit was laid, Windstream Mississippi, LLC (“Windstream”), pulled fiber optic cable through the conduit from its point of origin to the cellular tower. It is undisputed that at least part of the conduit and fiber optic cable was not placed on the property that was subject to the easement but, instead, was placed on the property adjacent thereto, which was owned by Eunice Dear. It is alleged that the wrongful placing of the conduit and fiber optic cable resulted in Ms. Dear's committing suicide. Upon Ms. Dear's death, title to her real property passed to her children, including Billy Dear (“Dear”). Dear, in an individual and representative capacity[1], filed a lawsuit against several defendants including Crown Castle, MasTec, SES, and ATTM alleging claims including trespass, negligent/intentional infliction of emotional distress, unjust enrichment, and wrongful death.

         A. Dear Plaintiffs' Objection to Order regarding Disqualification of Counsel

         When litigation began, Crown Castle, MasTec, SES, and ATTM were represented by separate counsel. During the pendency of this litigation, MasTec filed a lawsuit against Catlin Speciality Insurance Company and SES seeking adjudication of issues involving the duties to defend and indemnify Crown Castle, MasTec, SES, and ATTM in the Dear litigation, and SES filed a third party complaint against Crown Castle and ATTM. See MasTec Network Sols., LLC v. Catlin Speciality Ins. Co. et. al., 3:15-cv-244 (S.D. Miss). This case was dismissed in November of 2015, following settlement by the parties.

         2. In October of 2015, attorneys Edward J. Currie, Jr., and Whitman B. Johnson, III, of the law firm of Currie Johnson and Myers, P.A. (“Currie Johnson”) entered an appearance on behalf of Crown Castle, MasTec, SES, and ATTM. Thereafter, the Dear Plaintiffs moved to have Currie Johnson disqualified on the grounds that conflicts of interest existed among the four defendants it was representing. The matter came before Judge Walker who, on review, found: “Plaintiff has demonstrated no conflict sufficiently clear to call in question the fair or efficient administration of justice warranting disqualification of Defendants' counsel of choice.” Order [Docket No. 564], 4. On that finding, Judge Walker denied the Dear Plaintiffs' request that Currie Johnson be disqualified from representing Crown Castle, MasTec, SES, and ATTM jointly. The Dear Plaintiffs have objected to Judge Walker's Order.

         Review of a motion to disqualify counsel is governed by the following standard: “The proper standard of review ... is an abuse of discretion standard. But in applying this standard, we will review fact-findings for clear error, and we will perform a careful examination, or de novo review, of the district court's application of the relevant rules of attorney conduct.” F.D.I.C. v. United States Fire Ins. Co., 50 F.3d 1304, 1311 (5th Cir. 1995) (citations omitted). As regards the relevant rules of attorney conduct, the United States Court of Appeals for the Fifth Circuit as held that “[d]isqualification cases are governed by state and national ethical standards adopted by the court.” Id. See also Waites v. Lee Cty., Miss., 498 Fed.Appx. 401, 404 (5th Cir. 2012) (“In evaluating conflicts of interest, “courts should first look to ‘the local rules promulgated by the local court itself, ' ” ... “which in this case means that we look to the Mississippi Rules of Professional Conduct.”)(citing In re ProEducation Int'l Inc., 587 F.3d 296, 299 (5th Cir. 2009)). The Local Rules of this Court specifically adopt the Mississippi Rules of Professional Conduct. See L.U.CIV.R. Rule 83.5. The Fifth Circuit has found that the Mississippi Rules “are identical to the American Bar Association's Model Rules of Professional Conduct in all relevant aspects.” United States v. Starnes, 157 Fed.Appx. 687, 693-94 (5th Cir. 2005). See also Waites, 498 Fed.Appx. 404 n.1 (explaining that Rule 1.7 of the ABA Model Rules of Professional Conduct “is substantially similar to the Mississippi rule” 1.7). As regards potential conflicts of interest, Rule 1.7 of the Mississippi Rules of Professional Conduct provides:

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless the lawyer reasonably believes:
(1) the representation will not adversely affect the relationship with the other client; and
(2) each client has given knowing and informed consent after consultation. The consultation shall include explanation of the implications of the adverse representation and the advantages and risks involved.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless the lawyer reasonably believes:
(1) the representation will not be adversely affected; and
(2) the client has given knowing and informed consent after consultation. The consultation shall include explanation of the implications of the representation and the advantages and risks involved.

         Similarly, Rule 1.7 of the ABA Model Rules for Professional Conduct provides:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or

         3. (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.