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The Bernhoft Law Firm, S.C. v. Pollock

United States District Court, Ninth Circuit

July 11, 2013

THE BERNHOFT LAW FIRM, S.C., Plaintiff,
v.
BLAINE POLLOCK, Defendant.

ORDER DENYING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT [DOC. 17] AND DEFENDANT'S MOTION FOR RECONSIDERATION [DOC. 28]

THOMAS J. WHELAN, District Judge.

Pending before the Court is Defendant's motion for reconsideration of the Court's February 12, 2013 order (the "disqualification order") granting the Bernhoft Law Firm's ("Plaintiff") motion to disqualify counsel. ( Mot. to. Disq. [Doc. 8]; Order I [Doc. 25].) Also pending before the Court is Plaintiff's motion for default judgment. ( Mot. Default [Doc. 17].)

The Court decides the matter on the papers submitted and without oral argument. See Civ. L. R. 7.1(d.1). Having reviewed the moving papers, the Court DENIES Defendant's motion for reconsideration and DISMISSES Plaintiff's motion for default judgment.

I. BACKGROUND

On July 30, 2012, Defendant filed a motion to dismiss Plaintiff's action for insufficient service, pursuant to Federal Rule of Civil Procedure 12(b)(5). ( Mot. to Dismiss [Doc. 4].) On October 25, 2012, while Defendant's 12(b)(5) motion was pending, Plaintiff filed a motion to disqualify counsel, arguing, among other things, that Defendant's attorney Robert Barnes ("Mr. Barnes") was conflicted from representing Defendant in the instant matter. ( Mot. to Disq. 2:4-7.)

On November 14, 2012, the Court denied Defendant's 12(b)(5) motion ( Dismissal Order [Doc. 13]), thereby requiring Defendant to file an answer to Plaintiff's complaint on or by November 28, 2012. See Fed.R.Civ.P. 12(a)(4)(A). Defendant failed to submit an answer by that date, [1] and on November 30, 2012, Plaintiff moved for default judgment.

On February 12, 2013, the Court issued an order granting Plaintiff's motion for disqualification on the ground that there was a conflict of interest between Defendant and Mr. Barnes. ( See Order I. ) Specifically, the Court held that Mr. Barnes could not zealously represent Defendant's interests since, in the course of doing so, Mr. Barnes would need to attack the validity of bills that he approved and legal services that he provided. ( Id. 4.) The Court noted that Defendant never addressed this conflict of interest issue, effectively conceding that Mr. Barnes has a conflict of interest warranting disqualification. ( Id. 18-20)

On March 12, 2013, Defendant filed an ex parte application for leave to file a motion to reconsider Order I. ( Ex. Parte Mot. [Doc. 26].) On April 2, 2013, the Court issued an order granting Defendant's ex parte application. ( Order II [Doc. 27].) In granting this ex parte application, the Court ordered Defendant to explain why he should be allowed to raise the arguments enumerated in his ex parte application despite the fact that they were not raised in his opposition. ( Id. 2)

On April 15, 2013, Defendant filed this motion for reconsideration of Order I. ( Mot. for. Recon. [Docs. 28]; Reply [Doc. 30].) Plaintiff opposes. ( Opp'n [Doc. 29].)

II. LEGAL STANDARD

Defendant has filed a motion for reconsideration under Rule 60. Because Defendant is not seeking to correct a clerical mistake by the court, Rule 60(a) does not apply. Fed.R.Civ.P. 60(a). Rule 60(b) provides:

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for ...

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