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.

Waneck v. CSX Corp.

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

November 7, 2017

STARR SWEARINGEN WANECK AND AND JIMMY LEE WANECK PLAINTIFFS
v.
CSX CORPORATION, ET AL. DEFENDANTS

          ORDER OVERRULING PLAINTIFFS' [114] OBJECTIONS TO, AND DENYING PLAINTIFFS' APPEAL OF, MAGISTRATE JUDGE'S ORDER [113], AND DENYING PLAINTIFFS' MOTION [116] TO FILE ATTORNEY CLIENT PRIVILEGED DOCUMENTS UNDER SEAL

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT are Plaintiffs Starr Swearingen Waneck and Jimmy Lee Waneck's [114] Objections to, and Appeal of, United States Magistrate Judge John C. Gargiulo's August 25, 2017, Order [113] Granting Defendant CSX Transportation, Inc.'s Motion [50] to Raise Nonconsentable Conflict of Interest Under Rule 1.7(b) of the Mississippi Rules of Professional Conduct and Disqualify Pro Hac Vice Admitted Attorney Robert L. Pottroff, and Plaintiffs' Motion [116] to File Attorney Client Privileged Documents Under Seal. For the reasons that follow, the Court finds that Plaintiffs' Objections should be overruled, that their Appeal should be denied, and that their Motion to File Under Seal should be denied.

         I. BACKGROUND

         A. Relevant Background

         This matter arises out of a collision that occurred on March 7, 2017, when a charter bus, in which Plaintiffs Starr Swearingen Waneck and Jimmy Lee Waneck (“Plaintiffs”) were passengers, became wedged on a railroad crossing in Biloxi, Mississippi, and was struck by a freight train. Am. Compl. [1-1] at 44-46. Plaintiffs filed their Complaint on March 10, 2017, in the Circuit Court of Harrison County, Mississippi, Second Judicial District, and on March 20, 2017, filed an Amended Complaint. Notice of Removal [1] at 1.

         The Amended Complaint asserts claims against all Defendants for, among other things, negligence, gross negligence, negligence per se, willful and wanton conduct, recklessness, intentional conduct, and a reckless and intentional disregard for the safety of the traveling public, breach of Defendants' duties to “operate a train at a speed for the then existing conditions and be prepared to slow or stop for any hazardous conditions” and to inspect, repair, and report unsafe crossings, and intentional disregard for the safety of the traveling public. Plaintiffs seek actual and punitive damages and costs from Defendants, jointly and severally. Am. Compl. [1-1] at 46-58. Defendants CSX Corporation (“CSXC”) and CSX Transportation, Inc. (“CSXT”), removed the case to this Court on April 11, 2017. Notice of Removal [1] at 1-11.

         On June 2, 2017, Defendant CSXT filed a Motion [50] to Raise Nonconsentable Conflict of Interest Under Rule 1.7(b) of the Mississippi Rules of Professional Conduct and Disqualify Pro Hac Vice Admitted Attorney Robert L. Pottroff. Plaintiffs filed a Response [62] in Opposition, CSXT filed a Rebuttal [71], and Plaintiffs filed a Sur-reply [90].

         On August 25, 2017, the Magistrate Judge entered an Order [113] granting CSXT's Motion and disqualifying attorneys Robert L. Pottroff and Nathan L. Karlin of the law firm of Pottroff Law Office, PA (“Pottroff”), from representing Plaintiffs in this case. Order [113] at 21. The Magistrate Judge found the existence of a conflict of interest for Pottroff to represent Plaintiffs in the current matter for claims arising out of the March 7, 2017, collision while simultaneously representing the City of Biloxi, Mississippi, for claims brought against the City by CSXT under the Mississippi Tort Claims Act, Mississippi Code Annotated §11-46-1, et. seq., arising out of the same collision. Order [113] at 11-16. The Magistrate Judge concluded that this conflict of interest was nonconsentable under both Mississippi Rule of Professional Conduct 1.7 (“Mississippi Rule”) and the American Bar Association's (“ABA”) Model Rule of Professional Conduct 1.7 (“Model Rule”).

         Specifically, the Magistrate Judge found as follows:

The present case strikes the Court as exactly the type of circumstances under which a disinterested lawyer would conclude that a client should not agree to the (sic) his or her lawyer's representation of an additional client with adverse interests. The simultaneous representation of the Wanecks and the City of Biloxi presents serious and unavoidable conflicts of interest for Pottroff. The Wanecks seek to recover monetary damages for the injuries they suffered in the accident. It would seemingly not matter to them who is ultimately responsible for the accident, or in what proportion; they simply seek to recover as much as they are owed. However, to the extent that the City of Biloxi has an interest in the instant litigation, it is to minimize its liability for the accident. Necessarily, Pottroff cannot pursue any claim the Wanecks might have against Biloxi, no matter what the factual investigation reveals. The agreement between Pottroff and Biloxi even provides, “The Pottroff Law Office and any associated clients have agreed not to pursue suit or seek other legal recourse against the City of Biloxi related to this matter.” (ECF No. 50-3, at 9-10). Therefore, he cannot provide “competent and diligent representation” to the Wanecks. Model R. Prof'l Conduct 1.7(b)(1).
Additionally, subpart (b)(3) of Model Rule 1.7 similarly counsels against the consentability of the present conflict of interest. Although Plaintiffs have not asserted a claim against the City of Biloxi, they cannot do so while their attorney also represents Biloxi. Nonetheless, their interests, as already set forth, are adverse. Accordingly, the Court finds that the concurrent conflict of interest in Pottroff's representation of both the Wanecks and the City of Biloxi is not consentable under either Mississippi Rule 1.7 or Model Rule 1.7.

Id. at 18-19 (footnote omitted).

         The Magistrate Judge further found that the disqualification of Pottroff would not be detrimental to Plaintiffs' case because they will continue to be represented by competent counsel in William M. Cunningham, Jr. and Troy T. Schwant, both of the law firm Burns, Cunningham & Mackey, counsel of record appearing on the original Complaint. Id. at 20; Compl. [1-1] at 5-22.

         B. Plaintiffs' [114] Objections to, and Appeal of, Magistrate Judge's Order

         On September 9, 2017, Plaintiffs filed their [114] Objections to, and Appeal of, Magistrate Judge's Order. Plaintiffs do not contest the Magistrate Judge's determination that a conflict of interest exists, only his conclusion that this conflict of interest is nonconsentable. Mem. in Supp. [121] at 2. Plaintiffs proffer that “no lawyer for any victim”[1] has asserted a claim against the City of Biloxi, Mem. in Supp. [121] at 5, that Plaintiffs “do not wish to now or ever make a claim” against the City of Biloxi, id. at 9, and that “any ‘potential conflict' will disappear on March 7, 2018, ” based upon the limitations period for filing claims against the City of Biloxi under Mississippi Code Annotated §11-46-11(3), id. Plaintiffs maintain that Pottroff should not be disqualified since they were fully informed of the conflict and have given “knowing, informed and written consent to Attorney Pottroff's representation of the City of Biloxi.” Id. at 11.

         CSXT's Response [119] contends that the Magistrate Judge reached the correct decision and that Plaintiffs fail to identify “any error of law or fact in the Magistrate Judge's reasoned and legally sound written order.” Resp. in Opp'n [119] at 4. According to CSXT, Plaintiffs' admission that a conflict exits since the City of Biloxi's liability “‘may later be supported by facts, ”' only confirms that a nonconsentable ...


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.