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CARDONA v. GMC

August 8, 1996

SEBASTIAN CARDONA, Plaintiff,
v.
GENERAL MOTORS CORPORATION, Defendant. LOUIS MARAZZO, Plaintiff, vs. CHEVROLET MOTOR DIVISION OF THE GENERAL MOTORS CORPORATION, Defendant.



The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 These consolidated appeals are before the court pursuant to Rule 40.D.4 of the General Rules of the United States District Court for the District of New Jersey (hereinafter "General Rule 40.D.4") which governs appeals from non-dispositive orders of a magistrate judge. The orders appealed from, which were filed on December 5, 1995, *fn1" disqualified Jay M. London, Esq. ("London"), and the law firm of Kimmel & Silverman, P.C., from further representing plaintiffs in these actions pursuant to Rules 1.9 and 1.10 of the Rules of Professional Conduct. *fn2"

 I. Facts and Procedural History

 These actions were brought under the New Jersey "Lemon Law," *fn4" the Magnuson-Moss Warranty Act, *fn5" the Uniform Commercial Code, *fn6" the New Jersey Consumer Fraud Act, *fn7" and a common-law claim alleging detrimental reliance. This court's jurisdiction of these cases is based upon diversity of citizenship and an amount in controversy in excess of $ 50,000, exclusive of interest and costs. See 28 U.S.C. § 1332.

 The firm of Kimmel & Silverman, P.C. ("K&S"), has developed a practice devoted almost exclusively to the representation of plaintiffs in "lemon law" cases. Magistrate Judge Kugler's Opinion, filed December 5, 1995, ("Opinion") at 4. On June 2, 1995, London, who had previously represented General Motors Corporation ("GM") while employed as an associate at two different Philadelphia law firms, *fn8" disclosed to GM his intention to accept an associate's position with the firm of K&S. Opinion at 12. London sent a letter to GM which requested its consent. GM did not consent, or otherwise respond to London's letter. Id.

 On August 4, 1995, defendant, General Motors Corporation, moved to disqualify London and the firm of K&S in the cases then pending against GM which were filed after London began work at K&S. Between August 17, and September 15, 1995, Magistrate Judge Kugler conducted five days of hearings on GM's disqualification motion. On December 5, 1995, Magistrate Judge Kugler filed his Opinion and separate Orders disqualifying London and the K&S firm from further representing plaintiffs in the cases then pending before him. In November, 1995, approximately five months after he began working there, London ended his employment with K&S. On December 22, 1995, London and K&S filed these appeals.

 II. Standard of Review

 A United States Magistrate Judge may "hear and determine any [non-dispositive] pretrial matter pending before the court" pursuant to 28 U.S.C. § 636(b)(1)(A). In all non-dispositive pre-trial matters, a magistrate judge may issue an opinion and order. Under the authority granted by 28 U.S.C. § 636(b)(1)(B), a magistrate also "may conduct hearings, including evidentiary hearings," into dispositive matters, and submit "proposed findings of fact and recommendations for the disposition" of the matter to the district court. See generally 12 Charles A. Wright, et al., Federal Practice and Procedure § 3076.5 (Supp. 1996). The distinction between an order and a recommendation is meaningful to the district court's standard of review. Findings and recommendations of a magistrate are subject to de novo review under § 636(b)(1)(B). On the other hand, under § 636(b)(1)(A), a district court may only "reconsider [a] pretrial matter . . . where it has been shown that the magistrate's order is clearly erroneous or contrary to law." See United Steel Workers of America v. New Jersey Zinc, 828 F.2d 1001 (3d Cir. 1987). *fn9"

 A magistrate judge's ruling is "clearly erroneous when, although there is evidence to support it, the reviewing Court . . . is left with a definite and firm conviction that a mistake has been made." South Seas Catamaran, Inc. v. M/V Leeway, 120 F.R.D. 17, 21 (D.N.J. 1988) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 68 S. Ct. 525 (1948)), aff'd, 993 F.2d 878 (3d Cir. 1993). The party filing the notice of appeal bears the burden of demonstrating that the magistrate judge's decision was clearly erroneous or contrary to law. Exxon Corp. v. Halcon Shipping Co., Ltd., 156 F.R.D. 589, 591 (D.N.J. 1994).

 Under the clearly erroneous standard of review, "the magistrate judge's findings should not be rejected even if a reviewing court could have decided the issue differently." Toth v. Alice Pearl, Inc., 158 F.R.D. 47, 50 (D.N.J. 1994)(citing Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 84 L. Ed. 2d 518, 105 S. Ct. 1504 (1985)("Where there are two permissible views of the evidence, the fact-finder's choice between them cannot be clearly erroneous.")).

 III. Discussion

 In interpreting the Rules of Professional Conduct, the United States District Court for the District of New Jersey is guided by "definitive state court decision[s] interpreting the rules." Allyn Z. Lite, New Jersey Federal Practice Rules, 1996 Edition, cmt. to Rule 6, at 35 (1995). In the absence of such a ruling from the state courts, "the federal Court will proceed to reach its own conclusion." Id.

 A. Substantially Related Matters

 London contends that his disqualification under RPC 1.9(a)(1) was improper, because the cases presently before the court are not "substantially related" to the matters in which London represented GM while employed at the Lavin and McBreen firms. In support of this argument, appellants rely primarily on an opinion of the New Jersey Supreme Court Advisory Committee on Professional Ethics ("ACPE") interpreting RPC 1.9(a)(1), which bases a finding of a "substantial relationship" upon a "factual nexus" between the side-switching attorney's present case and the cases he or she worked on during the former representation. N.J. Adv. Comm. on Ethics Opinion No. 654, 129 N.J. L.J. 514 (1991). Appellants assert that such a factual nexus is absent in the cases now on appeal. Magistrate Judge Kugler, however, rejected this narrow reading of RPC 1.9(a)(1), choosing to rely on the "substantial relationship" test articulated by the New Jersey Supreme Court in Reardon v. Marlayne, Inc., 83 N.J. 460, 416 A.2d 852 (1980).

 In Opinion No. 654, the ACPE found it significant that Reardon was decided before the New Jersey Supreme Court adopted the Rules of Professional Conduct in 1984. The Reardon formulation of the "substantial relationship" test required disqualification when there was a "substantial relationship between the subject matter of the present suit and that of cases worked on during the former representation." Reardon, 83 N.J. at 474. The current rule, however, bans subsequent representation in "the same or a substantially related matter." RPC 1.9(a)(1). The ACPE found the Reardon language to be "somewhat broader" than the current rule. The ACPE noted that, in Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 536 A.2d 243 (1988), the New Jersey Supreme Court determined that RPC 1.9, in effect, replaced the Reardon three-part test for attorney disqualification. Id. at 212 (citing Reardon, 83 N.J. at 470).

 The Dewey court, however, only addressed whether the attorney had "represented" a party with interests adverse to the client of his new firm, within the meaning of RPC 1.9(a). As Magistrate Judge Kugler recognized, there was no discussion in Dewey of the proper standard for finding a "substantial relationship."

 
The Dewey court did not hold that Reardon was bad law; rather, it held that disqualification motions based on current representation of clients with interests adverse to those of a former client were now to be analyzed under the language of RPC 1.9, as opposed to the three prongs set forth by Reardon. This does not mean that the reasoning of Reardon does not also support the language of the rule. In fact, the Dewey court recognized that much of the discussion in Reardon was consistent with the language of the new rules. And, since the Dewey court did not address the point of what test should be used to determine what is a "substantially related matter," this court is left to conclude that the reasoning of Reardon on this issue survives, if not as black-letter law, then at least for guidance on the factors that this court should consider in a determination of what is a "substantially related matter."

 Opinion of Magistrate Judge Kugler at 27-28 (footnote omitted). Magistrate Judge Kugler is correct that Dewey in no way compels the conclusion that the "substantial relationship" analysis ...


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