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William A. Fish v. Joseph J. Hennessy

August 22, 2012

WILLIAM A. FISH, PLAINTIFF,
v.
JOSEPH J. HENNESSY, DEFENDANT,
JOSEPH J. HENNESSY, THIRD‐PARTY PLAINTIFF,
v.
MIDWEST OPPORTUNITY FUND, LLC, THIRD‐PARTY DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

On June 13, 2012, Magistrate Judge Nan R. Nolan held a hearing on Defendant Joseph J. Hennessy's Motion to Disqualify Counsel of Plaintiff William A. Fish. The Magistrate Judge denied the Motion and refused to disqualify Fish's counsel from continuing to represent him in this matter. Before the Court are two pending motions. Hennessy has filed objections to the Magistrate Judge's Order denying his Motion to Disqualify, and Fish has filed a Motion to Strike Defendant's Objections to Magistrate Judge Nan R. Nolan's Order of June 13, 2012 on the grounds that Hennessy's objections are untimely under Federal Rule of Civil Procedure 72(b)(2).

I. Background

The underlying dispute that gives rise to Hennessy's Motion to Disqualify originates from a judgment rendered in the Southern District of Ohio in favor of Fish against Hennessy. See Fish v. Hennessy, No. 1:10‐cv‐380 (S.D. Ohio February 9, 2012). Hennessy in turn received a judgment against Midwest Opportunity Fund (hereafter "MOF"). Hennessy guaranteed a loan from Fish to MOF, and MOF is a third‐party Defendant here. The case before this Court is for registration of judgment for enforcement in another district pursuant to 28 U.S.C. § 1963. At the time of the Ohio judgment, the Dykema law firm represented Hennessy with regards to a pending SEC investigation. On February 14, 2012, Dykema ceased its representation of Hennessy and on March 14, 2012, it started representing Fish in the present suit to enforce the Ohio judgment against Hennessy. At no time during the pendency of the Ohio suit did Dykema represent either party with respect to that suit. Hennessy brought this Motion to Disqualify, arguing that Dykema's former representation of him precludes it from now representing a materially adverse party against him under the Illinois Rules of Professional Conduct. The Magistrate Judge received briefs from the parties on this issue and heard oral argument concerning the same. On June 13, 2012 she rendered an Order on the record, holding that Dykema was not disqualified from representing Fish against Hennessy in the present matter, thereby denying Hennessy's Motion to Disqualify. Hennessy appeals to this Court, arguing that the Magistrate Judges's Order was clearly erroneous or contrary to law.

This Court is empowered to refer to a magistrate judge certain nondispositive pretrial matters pending before the Court, including motions to disqualify an attorney. See 28 U.S.C. § 636(b)(1)(A) ("a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court"); Fed. R. Civ. P. 72(a) (setting forth the procedure by which a magistrate judge hears nondispositive matters); see, e.g., Doe v. Catholic Archdiocese of Chicago, No. 09 C 7656, 2010 WL 2293460, *1 (N.D. Ill. June 8, 2010) (a motion to disqualify an attorney falls within the scope of a referral of all nondispositive pretrial motions to a magistrate judge); Ramos v. Pabey, No. 2:05‐CV‐189, 2005 WL 3556553, *4 (N.D. Ind. Dec. 27, 2005) (a motion to disqualify an attorney is a nondispositive pretrial matter). The magistrate judge may issue orders for the resolution of nondispositive pretrial matters, such as motions to disqualify an attorney. See 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a) ("When a pretrial matter not dispositive of a party's claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision."); see, e.g., Fidelity Nat. Title Ins. Co. of New York v. Intercounty Nat. Title Ins. Co., No. 00 C 5658, 2002 WL 1433584, *2 (N.D. Ill. July 2, 2002) (a magistrate judge may issue orders to dispose of nondispositive pretrial motions).

II. Motion to Strike

Fish moves to strike Hennessy's objection to the Magistrate Judge's Order on the grounds that it is untimely. Objections to a magistrate judge's nondispositive pretrial matters must be presented to the presiding district court within fourteen days of the date on which the objecting party receives notice of the order. See 28 U.S.C. § 636(b)(1) ("Within fourteen days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court."); Fed. R. Civ. P. 72(a) (a party has fourteen days from the time it is served with a copy of the magistrate judge's order in which to file objections to that order with the district court). The Order in this case was docketed and served on the parties on June 13, 2012. Hennessy filed his objections to the Magistrate Judge's Order on July 5, 2012, twenty‐ three days after receiving notice of the Order. Therefore, Hennessy's objections are untimely under a strict interpretation of the statute and the Rule. Hennessy argues that his late filing should be excused because his counsel was caring for his 99‐year‐old mother for one week during the fourteen day period. He argues that the late filing of one week is not an egregious delay and did not prejudice Fish.

A party's failure to seek timely review does not strip this Court of its power to review a nondispositive issue decided by a magistrate judge. See Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 761 (7th Cir. 2009) (quoting Allen v. Sybase, Inc., 468 F.3d 642, 658 (10th Cir. 2006)). The fourteen day deadline for filing objections to a magistrate judge's order imposed by 28 U.S.C. § 636(b)(1) is not a jurisdictional deadline. See Hunger v. Leininger, 15 F.3d 664, 668 (7th Cir. 1994). The statute is the counterpart to Federal Rule of Civil Procedure 72(a). See Willis v. Caterpillar Inc., 199 F.3d 902, 903 (7th Cir. 1999). When a deadline in not jurisdictional in nature, the Court is not required to impose the harsh penalty of dismissal for missing it. See Id. In Hunger the plaintiffs filed their objections three weeks after the magistrate judge issued his order. See Id. Finding that the objections were not "egregiously late" and did not cause "even the slightest prejudice" to the adverse party, the court allowed the untimely objections. See Id. Hennessy's objections are not egregiously late, and Fish, in his Motion to Strike, fails to explain how a one week delay significantly prejudices him. As such, the Court finds that the objections are properly before it, and the Court will review the Magistrate Judge's Order of June 13, 2012. Fish's Motion to Strike Defendant's Objections to Magistrate Judge Nan R. Nolan's Order of June 13, 2012 is accordingly denied.

III. Motion to Disqualify an Attorney

A magistrate judge's order concerning nondispositive pretrial matters is reviewed by this Court under the highly deferential clearly erroneous or contrary to law standard of review. See 28 U.S.C. § 636(b)(1)(A) ("A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law."); Fed. R. Civ. P. 72(a) ("The district judge in the case must set aside any part of the order that is clearly erroneous or contrary to law."); Ramos v. Pabey, 2005 WL 3556553, at *4 (a magistrate judge's order on a motion to disqualify an attorney is reviewed only to ensure that it is not clearly erroneous nor contrary to law-a highly deferential standard of review). A decision by a magistrate judge is clearly erroneous only when "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). When performing clear error review, the district court should not overturn a decision by the magistrate judge merely because the district judge would have independently come to a different conclusion from the one reached by the magistrate judge on the same set of facts. See Id. "Ordinarily, under clearly erroneous review, if there are two permissible views, the reviewing court should not overturn the decision solely because it would have chosen the other view." American Motors Corp. v. Great American Surplus Lines Insurance Co., No. 87 C 2496, 1988 WL 2788, *1 (N.D. Ill. Jan. 8, 1988).

Hennessy moved the Magistrate Judge for an order disqualifying Dykema from representing Fish against Hennessy in the present dispute. The Magistrate Judge denied the Motion, finding that Hennessy had not met his burden of proof to establish that disqualification was appropriate under Illinois Rule of Professional Conduct 1.10. That Rule states in part:

(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:

(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that ...


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