Calamar Enterprises, Inc. v. Blue Forest Land Group, LLC

222 F. Supp. 3d 257, 2016 U.S. Dist. LEXIS 168738, 2016 WL 7166588
CourtDistrict Court, W.D. New York
DecidedDecember 2, 2016
Docket1:16-CV-00686 EAW
StatusPublished
Cited by2 cases

This text of 222 F. Supp. 3d 257 (Calamar Enterprises, Inc. v. Blue Forest Land Group, LLC) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Calamar Enterprises, Inc. v. Blue Forest Land Group, LLC, 222 F. Supp. 3d 257, 2016 U.S. Dist. LEXIS 168738, 2016 WL 7166588 (W.D.N.Y. 2016).

Opinion

[260]*260DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

The plaintiff has filed a motion to disqualify (Dkt. 9), contending that the law firm representing the defendants also currently serves as the plaintiffs law firm in another matter, and therefore cannot simultaneously handle this litigation on behalf of an adverse party. Alternatively, the plaintiff argues that the law firm previously represented it in connection with matters substantially related to the present litigation, resulting in the disclosure of relevant privileged information, and accordingly, disqualification is required.

After considering the record and holding oral argument on the motion, this Court concludes that the motion to disqualify was filed for tactical reasons as opposed to any real concern that defense counsel’s prior representation will result in the disclosure of confidential information. Because defense counsel is not currently representing the plaintiff, and because there is not a substantial relationship between the prior representation and the current litigation, the motion to disqualify is denied.

BACKGROUND

Plaintiff Calamar Enterprises, Inc. (“Ca-lamar” or “Plaintiff’) commenced this action on or about July 21, 2016, in New York State Supreme Court, Niagara County. (Dkt. 1 at ¶ 1). Defendant Blue Forest Land Group, LLC (“Blue Forest”) and Timothy Locher (“Mr. Locher”) (collectively “Defendants”) timely removed the action to federal court based upon diversity jurisdiction. (Dkt. 1).

The case involves competing claims between the parties about whether Calamar, a commercial real estate developer, owes money to Blue Forest, a real estate development consultant, for services rendered pursuant to various Consulting Services Agreements. (Dkt. 1-2; Dkt. 5; Dkt. 10; Dkt. 16; Dkt. 26). Mr. Locher is the sole member of Blue Forest. (Dkt. 1 at ¶ 2(b)(iv)). Calamar has asserted causes of action against Defendants arising from alleged contractual breaches of the Consulting Services Agreements entered into between the parties, as well as a claim for fraudulent inducement. (Dkt. 10 at ¶¶ 80-95). Blue Forest has asserted counterclaims against Calamar for breach of contract, alleging that it is owed several hundred thousand dollars pursuant to the terms of the Consulting Services Agreements. (Dkt. 26 at 10-39).

Calamar alleges that, starting in 2012, it retained Defendants to “recommend to Ca-lamar suitable sites for development within understood guidelines pertaining to location, parcel size, land cost, adequate rental charges, and other specified financial viability requirements.” (Dkt. 10 at ¶ 3). The services at issue apparently related to the development of senior housing facilities in the Midwest Region of the United States, including in the States of Kansas, Missouri, Iowa and Nebraska. (Id. at ¶ 11). In order to select appropriate sites, Calamar alleges that it developed “Viability Parameters” and it was Defendants’ obligation to “perform preliminary due diligence with respect to prospective sites to ensure that they met these Viability Parameters before recommending any site to Calamar for its consideration.” (Id. at ¶ 14). Calamar alleges that Defendants failed to fulfill their obligations under the various Consulting Services Agreements by improperly performing the site selection services contemplated by the agreements. (Id. at ¶ 94). Blue Forest denies these claims, instead asserting various counterclaims alleging that Calamar has reneged on its payment obligations under the terms of [261]*261the agreements. (Dkt. 26). In addition, Defendants have filed a motion to dismiss the fraudulent inducement claim, as well as all claims asserted against Mr. Locher. (Dkt. 17).

PLAINTIFFS MOTION TO DISQUALIFY

On September 19, 2016, Calamar filed a motion to disqualify the law firm of Phillips Lytle LLP (“Phillips Lytle”), which has appeared on behalf of Defendants in this action. (Dkt. 9). Calamar bases its motion to disqualify on two alternative grounds: (1) Phillips Lytle currently represents Calamar, and thus is disqualified under the per se rule applicable to concurrent representations (Dkt. 9-12 at 4-7); and (2) Phillips Lytle formerly represented Cala-mar, there is a substantial relationship between that prior representation and the current litigation, and Phillips Lytle gained access to relevant privileged information during its prior representation of Calamar (id, at 7-12).

According to Calamar, Phillips Lytle partner Frederick G. Attea has assisted Calamar from 2011 through the present “in conducting fundraising meetings with prospective investors and financial partners for its senior housing projects.” (Dkt. 9-12 at 2). In support of that contention, Calamar has submitted a declaration from Kenneth M. Franasiak, President and Chief Executive Officer of Calamar. (Dkt. 9-5). In that declaration, Mr. Franasiak states, in relevant part, as follows:

■ Calamar developed so-called “Viability Parameters” which it considers “proprietary and the source of a significant competitive advantage” (Dkt. 9-5 at ¶ 16);
■ In 2011, Calamar formed an investment fund to support its business strategy in senior housing (id. at ¶ 10);
■ In July 2011, Mr. Franasiak reached out to Mr. Attea to seek his and Phillips Lytle’s assistance with the senior housing investment fund (id. at ¶ 11);
■ Calamar had previously retained Phillips Lytle in 2010, to assist with site plan approval and zoning matters pertaining to a project in Orchard Park, New York (id. at ¶ 12);
■ Phillips Lytle sent an engagement letter to Mr. Franasiak dated August 5, 2011, confirming that Cala-mar had retained the firm “in connection with certain matters relating to a debt financing of Calamar Senior Residence Properties,” with legal expenses capped at $2,500 (Dkt. 9-6); and,
■ That August 2011 engagement letter was subsequently cancelled, and Phillips Lytle sent a new engagement letter to Mr. Franasiak dated October 25, 2012, confirming that the firm had been retained “to provide legal services ... in connection with certain potential financing alternatives. ...” (Dkt. 9-7).

Mr. Franasiak contends in his declaration that Phillips Lytle has represented Cala-mar on a continuing basis for approximately five years, that the October 2012 engagement letter remains in effect, and that, in connection with that representation, Calamar has disclosed to Phillips Ly-tle “a wealth of private and confidential business information pertaining to Cala-mar’s finances and senior housing projects ... in reliance upon the attorney-client relationship.” (Dkt. 9-5 at ¶¶ 14-16, 21). At the oral argument of this matter, Plaintiffs counsel handed up to the Court unredacted copies of exhibits representing documents disclosed to Mr. Attea, and those exhibits reveal various financial information pertaining to Calamar.

[262]*262However, to be sure, the pre-2016 examples referenced by Mr. Franasiak relating to this alleged ongoing and continuing attorney-client relationship are limited to the following:

■ In August 2011, Mr. Attea facilitated discussions with the investment bank FBR Capital on behalf of Cala-mar, and Calamar provided Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

O'Rear v. Diaz
S.D. New York, 2024
United States v. Google LLC
E.D. Virginia, 2023

Cite This Page — Counsel Stack

Bluebook (online)
222 F. Supp. 3d 257, 2016 U.S. Dist. LEXIS 168738, 2016 WL 7166588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/calamar-enterprises-inc-v-blue-forest-land-group-llc-nywd-2016.