Schatzki et al v. Weiser Capital Management, LLC et al, No. 1:2010cv04685 - Document 224 (S.D.N.Y. 2013)
Court Description: OPINION re: 210 MOTION for Sanctions (Cross motion), filed by Hoitsz Michel, Weiser Capital Management, LLC, Weisermazars, LLP, 196 MOTION to Disqualify Counsel Notice of Motion, filed by Debra Schatzki, 215 CROSS MOTION for Sanct ions, filed by Hoitsz Michel, Weiser Capital Management, LLC, Weisermazars, LLP. The Plaintiff's motion to disqualify Defendants' counsel is denied, the motion to limit any testimony of Giachetti is granted as set forth above and the Defendants' motion to impose sanctions on the Plaintiff is denied. It is so ordered. (Signed by Judge Robert W. Sweet on 11/25/2013) (ja)
Download PDF
<![CDATA[
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------------x DEBRA SCHATZKI and BPP WEALTH, INC., Plaintiffs, -against- 10 Civ. 4685 OPINION WEISER CAPITAL MANAGEMENT, LLC, WEISERMAZARS, LLP and HOITSZ (A/K/A "CARIJN") MICHEL, Defendants. -----------------------------------------x , A P PEA RAN C E S: \ FILE~ Attorneys for Plaintiff LAWLER MAHON & ROONEY LLP 36 West 44th Street, Suite 1400 New York, NY 10036 By: Albert K. Lawler, Esq. Christopher S. Rooney, Esq. James J. Mahon, Esq. Attorneys for Defendants STARK & STARK, P.C. 993 Lenox Drive Lawrenceville, NJ 08543 By: Scott I. Unger, Esq. ' Sweet, D.J. Plaintif Inc. ("BPP") ra Schatz (collect pursuant to the i ("Schatzki") ly, the "Pla BPP Wealth, iffs") moved e 3.7 (b) (1) rent power of this Court and of the New York Rules of Professional Conduct, to disqualify law firm of Stark & Stark, P.C. Defendants in Gia ti ("Gia acting as t s action upon the ground t tti") , a sha Plaintiffs al counsel for Thomas der in the sa firm whom Defendants have named as a witness in the Jo Pre-Trial , will compelled to is judicial to the Defendants at the t a l , and precluding testimony that achetti from giving any testimony about Securities and Exchange Commiss Regulation S-P (17 C.F.R. Part 248) and/or s application to this case. The fendants Weiser Capital Management, LLC ("WCM"), Weisermazars LLP ("W") (collect against t ly, the "Defendants") have aintiffs As set forth Stark is and Hoitsz Michel ("Michel") for sanct Rule 11 of the Fed. R. C low, the motion to disquali , and any testimony by 1 achetti, if . P. Stark & , will be limited to facts within his knowledge. The Defendants' motion for sanctions is denied. Prior Proceedings This hard-fought litigation was initiated by the Plaintiffs on June 16, 2010 in which the Defendants, after terminating their agreements, misappropriated property belonging to the Plaintiffs. Discovery has been completed, a pretrial order filed and except for pretrial motions, and the action lS trial ready. On March 26, 2012, Giachetti's deposition was taken. He testified with respect to the events giving rise to this action. On September 19, 2012, Plaintiffs filed a "Motion to Strike Defendants' Answer" pursuant to the inherent powers of the Court. The motion was denied by memo and order of January 14, 2013. Pursuant to the Revised Stipulation and Scheduling Order, discovery was to end on April 1, 2013 and the parties were to submit to the Court trial briefs, a joint proposed trial order, and if applicable motions in limine, jury charges, voir dire requests or a special verdict form by June 7, 2013, or on 2 e as directed by the Court. Subsequent to the r such rt 1 Pretrial Order, of ent agreed to a mediation mediate to the mediation, Two da s agreed to try to of Friday, July 26, 2013. if filed the instant application. Disqualification is Denied Rule 3.7(b) of t New York Rules of Professional governs. The rule states that: (b) A lawyer may not act as advocate be tribunal in a matter if: re a (1) another 1 r in the lawyer's firm is likely to be called as a w ness on a significant issue other than on if of the client, and it is apparent that the testimony may be prejudicial to client; or (2) the 1 Rule 1.7 or Rule 1.9 Rule 1.7 governs clients. Plaintiffs cont r is precluded from doi licts of interest ~ r current achetti's testimony as a witness will violate subsection (b) (1). However, for here, it must be so by rule to apply rent that the [contested] testimony may be prejudicial to the client." The testimony of is not prejudicial to Defendants. 3 by Giachetti In Murra Cir.2009), v. Metro. Life Ins. Co. circuit court noted stic abuse. itself to n 583 F.3d 173 (2d t "(r]ule 3.7 lends Id. at 178. courts must guard aga t the tactical use of motions to disqualify counsel, they are subject to fairly strict scrutiny. . n The movant, there rs the burden of demonstrating specifically how as to what issues in case the prejudice may occur and that the likelihood of prejudice occurr is. . substantial. H "Prejudice H in this context means testimony that is "sufficiently adverse to 1 assertions or account of events offered on If of the client, such t the bar or the client have an interest lawyer's independence ting that testimony.H Id. (quoting Lamborn v. Dittmer, 873 F.2d 522, 531 1989)) (internal ci ta tions shold, "a law firm can movant proves by clear t tt ). Because of t disqualified by imputation only if convincing evidence re t integrity of j t [AJ the judicial to the client, and tness will provide testimony [B] (2d Cir. ial system will r as a t.H Id. at 178 79. This action is over three years old. Over fifteen sitions were taken. Plaintiffs have not demonstrated by " rand convinc dence H that the inte 4 ity of the judicial system will suf r by allowing Stark & Stark to serve as trial counsel. The Testimony of Giachetti Will Be Limited Giachetti may not testify at trial advice he may Schatzki's te rding any to Defendants at or a er the time of since Plaintiffs were prevented from exploring that issue at Giachetti's deposition by the assertion of the att ient privilege. The De opposed this 1 s have not tation. ti's testimony with respect to this case will be barred. ti has not been prof his testimony, if any, will be 1 as an expert, and to matters of fact. The Motion To Impose Sanctions Is Denied grounds for a been est ished, the motion olat of Rule ll(b) not sanctions is denied. Conclusion 5 ving The Plaintiff's motion to disquali counsel is denied, motion to limit any testimony of Giachetti is granted as set forth above and motion to impose sanct fendants' s on the Plaintiff is It is so New York, NY~ November "Z-!:J, 2013 6 Defendants' ied.
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
