Unpublished Disposition, 844 F.2d 791 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 844 F.2d 791 (9th Cir. 1987)

No. 87-7365.

United States Court of Appeals, Ninth Circuit.

Before ALARCON and NELSON, Circuit Judges, and PAUL G. ROSENBLATT,**  District Judge.

MEMORANDUM* 

Sharon R. Childs, Patrick Gilliam, William Kennington, Shirley L. Skirvin, Patricia Torgerson, Leonard Velis, and Sara-Faye Wood ("the petitioners") seek a writ of mandamus directing the district court to vacate its order granting the motion of Southern California Federal Savings and Loan Association, Ernest J. Luchsinger, Jack L. Shaffer and Rodney P. Tompkins to disqualify the petitioners' counsel, Mathews and Evans. The action is still pending in district court and has not yet been tried. The district court granted the motion to disqualify the petitioners' counsel on the ground that Mathews and Evans had been retained by Heidi Domenick, a former attorney for both Southern California Savings and Loan ("Old SoCal") and Southern California Federal Savings and Loan Association ("New SoCal"), in connection with her own discharge. The petitioners contend that their petition for writ of mandamus should be granted because they have no other means to obtain relief from the district court's order, the order damages them in a way not correctable on appeal, the order raises an issue of first impression, and the district court's order was clearly erroneous as a matter of law.

FACTS

The petitioners, represented by the firm of Mathews and Evans, sued their former employer, Southern California Federal Savings and Loan Association ("New SoCal") and New SoCal's predecessor, Southern California Savings and Loan Association ("Old SoCal"), as well as the Federal Savings and Loan Insurance Corporation ("FSLIC"), Ernest J. Luchsinger, Jack L. Shaffer, and Rodney P. Tompkins1  for wrongful discharge, violations of ERISA, breach of the implied covenant of good faith and fair dealing, and intentional infliction of emotional distress.

The petitioners were all officers of Old SoCal's "Money Desk" program, a national telemarketing program involving the telephone solicitation of large certificates of deposit from clients who had not previously done business with Old SoCal. In June 1985, the FSLIC declared Old SoCal insolvent and closed the institution. The FSLIC then transferred the assets and liabilities of Old SoCal to a newly-created federal savings and loan association, New SoCal, and the petitioners became employees of New SoCal. New SoCal gradually phased out the "Money Desk" program, and eventually eliminated the program entirely.

On June 6, 1987, New SoCal, Luchsinger, Shaffer and Tompkins filed a motion for an order disqualifying the law firm of Mathews and Evans from continued representation of the petitioners because the firm had also been retained by Heidi Domenick, a former attorney for both Old SoCal and New SoCal, in connection with her own discharge. The district court granted the motion disqualifying Mathews and Evans from continued representation of the petitioners and prohibited the firm from communicating to successor counsel any information obtained from Heidi Domenick or any information obtained as a result of the firm's legal representation of Domenick. On August 3, 1987, the petitioners moved for reconsideration of the district court's disqualification order. The district court denied the motion and refused to certify the order for interlocutory appeal under 28 U.S.C. § 1291(b); instead, the court suggested that the petitioners seek review of its order by way of a writ of mandamus. On August 20, 1987, the petitioners filed an emergency petition for a writ of mandamus. A motions panel of this court stayed the district court proceedings pending disposition of the petition.

ANALYSIS

* Standard of Review and Applicable Law

Mandamus is generally considered a drastic remedy, to be invoked only in exceptional or extraordinary circumstances. See Kerr v. United States Dist. Court, 426 U.S. 394, 402 (1976). Normally, the writ issues only where the district court has exceeded its jurisdiction, or has taken other actions amounting to a judicial usurpation of power. See Guerra v. Board of Trustees, 567 F.2d 352, 353-54 (9th Cir. 1977).

In Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir. 1977), this court identified five specific guidelines for determining the propriety of mandamus relief in a particular case:

1. The party seeking the writ has no other adequate means, such as a direct appeal, to obtain the desired relief;

2. The petitioner will be damaged or prejudiced in a way not correctable on appeal:

3. The district court's order is clearly erroneous as a matter of law;

4. The district court's order is an oft-repeated error or one manifesting a persistent disregard of the federal rules; and

5. The district court's order raises new and important problems or legal issues of first impression.

Id. at 654-55. This court reaffirmed the Bauman guidelines in Levine v. U.S. Dist. Court for Cent. Dist. of Cal., 764 F.2d 590, 593-94 (9th Cir. 1985), cert. denied, 106 S. Ct. 2276 (1986).

Although satisfaction of all the factors is not required, Valley Broadcasting Co. v. United States Dist. Court, 798 F.2d 1289, 1292 n. 3 (9th Cir. 1986), the petitioner must make a strong showing of at least the first three factors in order to persuade the court to exercise its discretion in favor of issuing the writ. C.B.S. v. United States Dist. Ct. for Cent. Dist. of California, 729 F.2d 1174, 1177-78 (9th Cir. 1983). In Levine, the court held that even where application of the first two Bauman guidelines supports an exercise of mandamus jurisdiction, a simple showing of error will not satisfy the third guideline. See Levine, 764 F.2d at 594. The burden is on the petitioner to show a clear and indisputable right to mandamus relief. See In re Cement Antitrust Litigation (MDL No. 296), 688 F.2d 1297, 1305 n. 5 (9th Cir. 1982), aff'd for lack of a quorum, 459 U.S. 1191 (1983).

II

MERITS

Petitioners contend that the petition for mandamus should be granted because they have met the first, second, third and fifth Bauman factors. This Court concludes that petitioners have met the first and fifth Bauman factors, and that the fourth factor has no applicability. However, because the petitioners have not met the second Bauman factor, the petition must be denied, and therefore it is not necessary for the Court to consider the third factor.

The petitioners have not demonstrated that they will suffer irreparable injury absent mandamus relief.

They contend damage will be incurred in additional cost, unreasonable delay and waste for the following reasons: the issues presented in the case are extremely complex and it would be difficult or impossible to locate competent substitute counsel; most of the work has been completed and it would take a significant amount of time for the petitioners to acquaint substitute counsel with their case; present counsel may face motions to disqualify in related court proceedings in California; and petitioners will be unable to pay future retainers because they have lost their jobs and thus will be unable to continue the litigation unless substitute counsel would be willing to work for a straight contingency.

The Court is not satisfied that competent substitute counsel cannot be located and although the litigation may be costly, the costs associated with even massive, multi-district litigation do not constitute irreparable injury. See In re Sugar Antitrust Litigation, 559 F.2d 481, 484 (9th Cir. 1977) (denying mandamus relief from an order certifying class). The fact that any error in the district court's order may cause hardship from delay and the additional expenditure of judicial and private resources likewise does not justify mandamus relief. See Schlagenhauf v. Holder, 379 U.S. 104, 110 (1964); Bauman, 557 F.2d at 657. The propriety of the district court's disqualification order can be reviewed as effectively on appeal of a final judgment as it can on interlocutory review. See Richardson-Merrell, Inc. v. Koller, 472 U.S., 424, 438 (1985).

The petitioners having failed to show that they will suffer irreparable harm in a way not correctable on appeal, the petition for writ of mandamus is denied.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 **

Honorable Paul G. Rosenblatt, United States District Judge for the district of Arizona, sitting by designation

 1

Luchsinger and Shaffer were officers of both Old SoCal and New SoCal; Tompkins was an officer of New SoCal