Foy v. S.M.A. Ins. Agency CV-95-97-SD 09/30/96 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
James M. Foy
v. Civil No. 95-97-SD
S.M.A. Insurance Agency, Inc.; Jonathan Robinson, Receiver; Jonathan Robinson, individually
O R D E R
In this civil action, plaintiff James M. Foy seeks
declaratory and monetary relief against defendants S.M.A.
Insurance Agency, Inc., and Jonathan Robinson individually and in
his capacity as receiver for S.M.A. The second amended complaint
contains a claim for declaratory relief pursuant to 28 U.S.C. §
2201 (1994), as well as various state law claims including
negligence and breach of fiduciary obligations.
Presently before the court are myriad motions filed by the
various parties. This order will address (1) defendant
Robinson's motion to dismiss for lack of personal jurisdiction
(document 4), to which plaintiff objects; (2) defendant S.M.A.'s
and defendant receiver's motion to dismiss for lack of venue
(document 8), to which plaintiff objects; (3) S.M.A.'s and
receiver's motion for change of venue (document 7); and (4) plaintiff's motion to disqualify counsel for defendant S.M.A.
(document 25), to which defendant objects.
Background
Plaintiff Foy is a resident of New Hampshire, defendant
S.M.A. is a Maine corporation, and defendant Robinson is a
resident of Maine. In 1990, one Craig Linscott (not a party in
this action) sought dissolution of S.M.A. in the Superior Court
of York County, Maine (Brennan, J.), pursuant to Maine Revised
Statutes, tit. 13-A, § 1115. In July of 1992, the court
appointed Robinson as receiver of S.M.A. and set forth his duties
to include, inter alia, management of S.M.A.'s business affairs.
S.M.A. has elected subchapter S status under the Internal
Revenue Code, making it a pass-through entity for federal income
taxation purposes. Foy claims that while Robinson was receiver,
S.M.A. issued reports for federal income tax purposes which
erroneously represented that Foy, as 100 percent shareholder of
S.M.A., received an aggregate income exceeding $730,000 for the
tax years 1992 through 1994. Despite having described these
funds as income to Foy, S.M.A. refuses, "without excuse or
explanation, to release these funds to Foy, despite his demand
for their release." Second Amended Complaint I 14. Foy also
asserts that some of the withheld funds are located in New
2 Hampshire. Specifically, Foy alleges that S.M.A. maintained bank
accounts in Somersworth, New Hampshire, and that approximately
$500,000 of the money reported to be Foy's was held there.
However, when Robinson learned of the instant action, he
transferred the bulk of the funds out of New Hampshire. See id.
$1 16.
On June 14, 1995, the York County Superior Court (Perkins,
J.) ordered that S.M.A. be dissolved and that Robinson, in his
capacity as receiver, transfer all of S.M.A.'s assets and
liabilities, except for taxes, to a corporation owned by
Linscott. See id. 1 17. Nonetheless, S.M.A. and Robinson have
still failed to amend the tax reports to state that the income
was Linscott's, and not Foy's. See id. I 18.
Foy asks the court to declare, pursuant to 28 U.S.C. § 2201,
either that the funds are in fact his or that the information
returns are in error. Other counts in the complaint allege that
Robinson, both individually and in his capacity as receiver, was
negligent and that he breached his fiduciary duty in his capacity
as receiver.
3 Discussion
1. Defendant Robinson's Motion to Dismiss for Lack of Personal
Jurisdiction Over Him Personally
When personal jurisdiction is challenged, the plaintiff
bears the burden of persuading the court that the defendants'
contacts with the forum state satisfy both the state's long-arm
statute and the Due Process Clause of the Fourteenth Amendment.
Sawtelle v. Farrell, 70 F.3d 1381, 1387 (1st Cir. 1995) (citing
McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189
(1936); Dalmau Rodriguez v. Hughes Aircraft Co., 781 F.2d 9, 10
(1st Cir. 1986); Ticketmaster-New York, Inc. v. Alioto, 26 F.3d
201, 203 (1st Cir. 1994)) (other citations omitted).
To determine whether plaintiff has met such burden, the
court may select the prima facie method, which is the preferred
approach to cases that do not involve conflicting versions of the
facts, or material issues of credibility. Foster-Miller, Inc. v.
Babcock & Wilcox Canada, 46 F.3d 138, 145-46 (1st Cir. 1995);
Bolt v. Gar-Tec Prods., Inc., 967 F.2d 671, 675-76 (1st Cir.
1992). To make a prima facie showing, the plaintiff must go
beyond the pleadings and "adduce evidence of specific facts."
Foster-Miller, supra, 46 F.3d at 145; accord Bolt, supra, 967
F.2d at 675. The district court, in turn, should accept
plaintiff's properly supported evidence as true, much as it would
4 treat a satisfactorily supported motion for summary judgment as
provided by Rule 56(c), Fed. R. Civ. P. Id.; Bolt, supra, 967
F.3d at 675. Thus the court draws "the facts from the pleadings
and the parties' supplementary filings, including affidavits,
taking facts affirmatively alleged by plaintiff as true and
construing disputed facts in the light most hospitable to
plaintiff." Ticketmaster, supra, 26 F.3d at 203.
Rule 12, Fed. R. Civ. P., provides that the defense of lack
of personal jurisdiction "shall be heard and determined before
trial on application of any party, unless the court orders that
the hearing and determination thereof be deferred until the
trial." Rule 12(d), Fed. R. Civ. P. If a motion to dismiss is
granted after the court applies the prima facie standard, then
the motion is "'heard and determined before trial'" in compliance
with the rule. See Bolt, supra, 967 F.2d at 676 (guoting Rule
1 2 (d)). However, if the court denies the motion to dismiss, "it
is implicitly, if not explicitly, ordering 'that hearing and
determination [of the motion to dismiss] be deferred until the
trial.'" Id. (guoting Rule 12(d)) (alteration in Bolt) .
_____ a. The New Hampshire Lonq-Arm Statute
In diversity cases, the forum's long-arm statute governs
whether the district court has personal jurisdiction over a
5 nonresident defendant. Sawtelle, supra, 70 F.3d at 1387. The
relevant New Hampshire long-arm statute permits the exercise of
jurisdiction over nonresident defendants who "in person or
through an agent. . . commit[] a tortious act within [the] state
. . . ." New Hampshire Revised Statutes Annotated (RSA) 510:4, I
(1983 & Supp. 1994).
The New Hampshire long-arm statute applicable to individuals
affords jurisdiction "'to the full extent that the statutory
language and due process will allow.'" Sawtelle, supra, 70 F.3d
at 1388 (guoting Phelps v. Kingston, 130 N.H. 166, 171, 536 A.2d
740, 742 (1987)). "[W]hen a state's long-arm statute is
coextensive with the outer limits of due process, the court's
attention properly turns to the issue of whether the exercise of
personal jurisdiction comports with federal constitutional
standards." Id. (citation omitted); accord Estabrook v. Wetmore,
129 N.H. 520, 523, 529 A.2d 956, 958 (1987) ("This court has
consistently interpreted [the long-arm statute] to grant
jurisdiction whenever the due process clause of the United States
Constitution permits it.") (citing Roy v. North Am. Newspaper
Alliance, Inc., 106 N.H. 92, 95, 205 A.2d 844, 846 (1964)); see
also Kopf v. Chloride Power Elecs., Inc., 882 F. Supp. 1183, 1192
(D.N.H. 1995). Accordingly, although the parties dispute whether
the defendants' contacts with New Hampshire satisfy the long-arm
6 statute, the court need not address the issue, and instead may
proceed directly to the federal constitutional question.
b. Federal Due Process
To comport with the federal Due Process Clause, plaintiff
must show the existence of "minimum contacts" between the
defendants and the forum state. World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 291 (1980) (quoting International Shoe Co.
v. Washington, 326 U.S. 310, 316 (1945)). To establish minimum
contacts on a theory of specific jurisdiction, plaintiff must
make the following demonstrations: (1) that defendants
purposefully availed themselves of the privilege of conducting
business in the forum state, Ticketmaster, supra, 26 F.3d at 206
(citing Hanson v. Denckla, 357 U.S. 235, 253 (1958)); and (2)
that the cause "'arises out of, or relates to' defendant[s ']
contacts with the forum state," id. (quoting Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)).
Once plaintiff succeeds in making such showings, the defendants
may still win the jurisdictional battle if they establish that
defending a suit in the forum state would be a fate "inconsistent
with 'fair play and substantial justice.'" Id. (quoting
International Shoe, supra, 326 U.S. at 320) .
7 _____ Purposeful Availment
The exercise of jurisdiction over a nonresident defendant is
permissible if the defendant has "purposefully directed his
activities at residents of the forum." See Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (1985) (quotation omitted). The
mere fact that it may have been foreseeable to the defendant that
his conduct would cause injury in another state will not suffice,
without more, to support jurisdiction. Id. at 474 (citing World-
Wide Volkswagen, supra, 444 U.S. at 295). " [R]andom, isolated,
or fortuitous" acts will not do, see Keeton v. Hustler Magazine,
Inc., 465 U.S. 770, 774 (1984), nor can jurisdiction be premised
solely on the "'unilateral activity of another party or a third
person,'" Burger King, supra, 471 U.S. at 475 (citing
Helicopteros, supra, 466 U.S. at 417).
Instead, the Due Process Clause requires that a defendant's
contacts with the forum state be such that "'he should reasonably
anticipate being haled into court there.'" Id. (quoting World-
Wide Volkswagen, supra, 444 U.S. at 297). There should be "'some
act by which the defendant purposefully avails itself of the
privilege of conducting activities within the forum State, thus
invoking the benefits and protections of its laws.'" Asahi Metal
Indus, v. Superior C t . of Cal., 480 U.S. 102, 109 (1987) (quoting
Burger King, supra, 471 U.S. at 475). Defendant's contacts must "'proximately result from actions by the defendant himself that
create a "substantial connection" with the forum State.'" Id.
(quoting McGee v. International Life Ins. Co., 355 U.S. 220, 223
(1957)).
Robinson asserts that the court has no jurisdiction over him
with respect to the claims against him personally. In support
thereof, Robinson asserts that any activities he may have
performed in New Hampshire were solely in his capacity as
receiver for S.M.A., and not on his own behalf. According to
Robinson, it would be "unfair" for the court to exercise
jurisdiction over him in his personal capacity because he never
willingly put his personal resources at risk nor acted in his own
personal interest.
Although not gracefully stated, Robinson's argument appears
to be that he, personally, has not "purposefully availed" himself
of the privilege of doing business in New Hampshire, as required
by the Due Process Clause, because his activities stemmed from
his position as receiver. Plaintiff hotly contests this
argument, citing Estabrook v. Wetmore, 129 N.H. 520, 529 A.2d 956
(1987), in which the court found that a nonresident corporate
officer was subject to in personam jurisdiction in New Hampshire
because his "own acts for the corporation are the alleged cause
of the injury here." Id. at 526, 529 A.2d at 959. Defendant responds that a receiver is in a substantially different position
than a corporate officer such that Estabrook's reasoning is not
applicable. Finding this argument to have some merit, the court
finds it necessary to make a small foray into the underpinnings
of a claim against a receiver.
It is generally recognized that "actions against a receiver
are not personal in nature, but are against the receivership or
the related funds." Capitol Indem. Corp. v. Curiale, 871 F.
Supp. 205, 209 (S.D.N.Y. 1994) (citing McNulta v. Lochridge, 141
U.S. 327, 332 (1891)). However, a receiver may be held
personally liable where his actions were outside the scope of his
authority as a receiver. See id. at 209; cf. Federal Home Loan
Mortqage Corp. v. Tsinos, 854 F. Supp. 113, 116 (E.D.N.Y. 1994)
("Only in the rare instance where a receiver has acted outside
the scope of his or her authority may the receiver be sued in his
or her individual capacity.").
The First Circuit in Kermit Constr. Corp. v. Banco Credit Y
Ahorro Ponceno, 547 F.2d 1 (1st Cir. 1976), has recognized that
receivers, being court officers, "share the immunity awarded to
judges." Id. at 2; c f . Hazzard v. Westview Golf Club, Inc., 217
A.2d 217, 223 (Me. 1966) ("A receiver appointed by a court of
eguity is an officer thereof . . . .") (guotation omitted). "At
the least, a receiver who faithfully and carefully carries out
10 the orders of his appointing judge must share the judge's
absolute immunity. To deny him this immunity would seriously
encroach on the judicial immunity already recognized by the
Supreme Court." Kermit Constr. Corp., supra, 547 F.2d at 3.
Moreover, although the immunity is limited to those actions
carefully and faithfully ordered by the court, see id. at 3,
absolute immunity would fail to attach only when such persons perform acts which are clearly outside the scope of their jurisdiction. . . . [A] negations of malice, or bad faith or, as here, a claim of conspiracy will not defeat the protection of derivative absolute immunity for actions taken pursuant to court orders.
Cok v. Cosentino, 876 F.2d 1, 3 (1st Cir. 1989) (citations
omitted).
When taken as true, plaintiff's allegations do not suggest
that Robinson acted beyond the scope of his authority as receiver
such that he could be subject to personal liability. As was the
case in Cok, there are "no allegations of theft or personal
profiteering, or that any of [his] acts were taken without the
sanction of the . . . court." Id. at 4. However, although a
receiver may differ from another corporate employee for purposes
of individual liability, for purposes of personal jurisdiction, a
receiver is roughly analogous to any other employee of a
corporation. As plaintiff points out, under the order of the
York County Superior Court, Robinson functioned as the eguivalent
11 of a corporate officer, and as such he is susceptible to
jurisdiction to the extent that such officer would be.
"Jurisdiction over a corporate officer may not be based merely on
jurisdiction over the corporation but must rest on a 'showing of
direct personal involvement by the corporate officer in some
decision or action which is causally related to plaintiff's
injury.'" Villa Marina Yacht Sales v. Hatteras Yachts, 915 F.2d
7, 10 (1st Cir. 1990) (quoting Escude Cruz v. Ortho
Pharmaceutical Corp., 619 F.2d 902, 906, 907 (1st Cir. 1980)).
Defendants do not assert that Robinson was not personally
involved in a decision or action causally related to plaintiff's
injuries. Nor do they claim that jurisdiction over the
corporation or over Robinson as receiver is lacking. Instead,
their only contention is that because Robinson acted within the
scope of his authority, he is not personally liable and therefore
personal jurisdiction is also lacking.
In Villa Marina Yacht Sales, the court rejected the notion
that proof of the tortious nature of a particular conduct is
necessary to establish personal jurisdiction over a defendant.
"Requiring proof of the tortious nature of acts in order to
assert jurisdiction would make the jurisdictional determination
identical to the merits." Id. at 11 (discussing Puerto Rico's
long-arm statute). Thus, in that case, the court focused
12 defendant's contacts with the forum state, and did not
investigate whether such conduct was tortious. Similarly, as
stripped to its essentials--Robinson arguing that his conduct was
not "tortious" in the sense that it would not subject him to
personal liability in this state--his position carries no weight
for jurisdictional purposes. Accordingly, the court finds and
herewith rules that his motion is denied.1
2. Venue
S.M.A. and Robinson as receiver have moved to dismiss for
improper venue (document 8) or, in the alternative, to transfer
the case to the United States District Court for the District of
Maine (document 7), claiming that no section of the venue
statute, 29 U.S.C. § 1391 applies here. Plaintiff attempts to
establish venue pursuant to the following section:
A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in
1It is curious that Robinson has styled his motion as one for lack of personal jurisdiction pursuant to Rule 12(b) (2), Fed. R. Civ. P., instead of one for failure to properly state a claim for which relief can be granted pursuant to Rule 12(b)(6), Fed. R. Civ. P. Given that "courts should ordinarily satisfy jurisdictional concerns before addressing the merits of a civil action," Feinstein v. Resolution Trust Corp., 942 F.2d 34, 40 (1st Cir. 1991), the court has elected to keep the defendant at his word and treat his motion as one for lack of personal jurisdiction.
13 . . . a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated
28 U.S.C. § 1391(a) (2) .
Plaintiff argues that a substantial portion of the events
and property giving rise to this litigation were located in New
Hampshire. First, he notes that the injury took place in New
Hampshire, including his loss of over $730,000 and increased tax
liability. Second, he observes that many of the events occurred
in New Hampshire, including the receiver's transfer and removal
of funds to and from New Hampshire. More specifically, plaintiff
observes that the receiver moved over one-half million dollars
from New Hampshire to Maine on February 15, 1995. See Affidavit
of Jonathan C. Robinson 1 5.3; Letter dated March 8, 1995, from
Edward Haffer to Gregory Uliasz (attached as Exhibit F to
Plaintiff's Objection). The court agrees with plaintiff that
this evidence supplies the necessary predicate to support venue,
as set forth in 42 U.S.C. § 1392. The court therefore finds and
herewith rules that defendants' motion to dismiss for improper
venue is denied.
The court is also unpersuaded by S.M.A.'s and the receiver's
motion to change venue pursuant to 28 U.S.C. § 1404(a), which
provides, "For the convenience of parties and witnesses, in the
14 interest of justice, a district court may transfer any civil
action to any other district or division where it might have been
brought." 28 U.S.C. § 1404(a).
As has recently been recognized in this district,
" [d]istrict courts enjoy considerable discretion in deciding
whether to transfer a case pursuant to section 1404(a)." Perkins
v. American Honda Motor Co., No. 95-616-M, slip op. (D.N.H.
July 2, 1996) (citing Norwood v. Kirkpatrick, 349 U.S. 29, 32
(1955); Cianbro Corp. v. Curran-Lavoie, Inc., 814 F.2d 7, 11 (1st
Cir. 1987); Codex Corp. v. Milqo Elec. Corp., 553 F.2d 735, 737
(1st Cir.), cert, denied, 434 U.S. 860 (1977)).
The decision to transfer a case should include consideration
of the convenience of the parties and witnesses, the relative
availability of documents and other evidence, and the possibility
of consolidation. See Cianbro Corp., supra, 814 F.2d at 11;
Buckley v. McGraw-Hill, Inc., 762 F. Supp. 430, 439 (D.N.H.
1991). The party seeking the transfer bears the burden of
showing that the relevant factors favor transfer. Id. at 439;
accord Crosfield Hastech, Inc. v. Harris Corp., 672 F. Supp. 580,
589 (D.N.H. 1987); see also 1A J a m e s W. M o o r e , e t a l . , M o o r e 's F e d e r a l
Practice 5 0.345 [5] (2d ed. 1993) . "Transfer is inappropriate if
the effect is merely to shift inconvenience from one party to the
other." Buckley, supra, 762 F. Supp. at 439 (citing 15 W r i g h t ,
15 M iller & C o o p e r , Federal Practice and Pr o c e d u r e : Jurisdiction (S e c o n d ) §
3848 (and cases therein cited)).
As for the parties' relative convenience, defendants have
not shown that they would be more inconvenienced by litigating in
Concord, New Hampshire, than plaintiff would be should the case
be transferred to Maine. That said, it must also be noted that
the inconvenience to either party does not appear substantial in
either event. Certainly, it would be slightly more convenient
for plaintiff, a resident of Exeter, New Hampshire, to travel to
Concord, New Hampshire, than to Portland, Maine. But it is also
likely that it would be slightly more convenient for defendant
Robinson, a resident of Maine, and defendant S.M.A., a Maine
corporation, to litigate in Maine. Where, as here, the relative
convenience of the parties is in eguipoise, defendants have
failed to satisfy their burden of showing that the "convenience"
element weighs in their favor.
The court ordinarily would next turn to two other relevant
factors: the convenience of the witnesses, often treated as the
most important consideration, and the relative ease of access to
documents and other evidence in each jurisdiction. However, as
neither party has argued these points, the court will not tarry
here, either.
The last consideration is the likelihood of consolidation
16 with another pending suit if the case is transferred. Defendants
maintain that if the case is transferred to Maine, they would
request that the transferee court abstain pending resolution of a
similar case currently pending in York County Superior Court.2
This argument fails for two crucial reasons. First, defendants
have not stated why they would have to transfer the case before
requesting that the court abstain. The court knows of no reason
why, assuming all the relevant prerequisites for abstention were
met, it could not abstain in anticipation of a decision from a
state court sitting in another state.
Second, even if the court were to credit the notion that the
possibility of abstention can warrant transfer in certain
circumstances, this case does not present such circumstance. In
general, a federal court can abstain from deciding a case in
deference to a parallel state proceeding only in certain,
narrowly prescribed situations. See, e.g., Elmendorf Grafica,
Inc. v. D.S. America (East), Inc., 48 F.3d 46, 50 (1st Cir.
1995). As defendants' sole basis for the potential abstention is
2For reasons that will become apparent, the procedural posture of said case is immaterial. Thus, the court will assume that the case is currently pending, even though plaintiff has asserted that it has reached final adjudication. (In support of said assertion, plaintiff has invited the court to comb the docket in search of a purported statement of defendant to that effect. The court respectfully denies such request.)
17 "reasons of comity", S.M.A.'s and Receiver's Motion for Change of
Venue 5 5, and they have not even attempted to set forth a
recognized argument for abstention, they plainly have not
satisfied their burden. Accordingly, for both of the enumerated
reasons, the court finds and herewith rules that defendants'
motion for change of venue is denied.
3. Plaintiff's Motion to Disqualify Counsel for Defendant S.M.A.
(document 25)
In support of his motion to disgualify S.M.A.'s counsel,
plaintiff argues that the order of the Maine court creating the
receivership pendente lite did not give Robinson express
authority to hire an attorney to represent S.M.A. According to
plaintiff, S.M.A. has been divested of its "fundamental right--to
choose its own counsel." Furthermore, plaintiff contends that
(1) the Maine court order would have reguired Robinson to return
to the court for such authority, and (2) the instant action does
not relate to S.M.A.'s dissolution and therefore the hiring of an
attorney is not a "necessary part of Robinson's duties to oversee
S.M.A. pendente lite."
A receiver's authority is dictated by the court that
appointed him or her. See Fauci v. Mulreadv, 150 N.E.2d 286, 290
(Mass. 1958). Review of the appointing court's order leads this
18 court to the conclusion that Robinson likely had the authority to
hire counsel for S.M.A. The York County Superior Court order
provides that the receiver pendente lite will be appointed to
manage the "business and affairs" of S.M.A., and the receiver
will have the following "obligations and authority":
(1) to oversee and manage the day-to-day operations of the corporation; (2) to take possession of funds and assets of the corporation; (3) to account for all income, receipts and expenses of the corporation; (4) to make decisions concerning the hiring and termination of employees of the corporation, other than Craig Linscott, and to set their compensation; (5) to consult with, receipt input from and report to Craig Linscott and James Foy with respect to the foregoing and other matters within the authority of the receiver; (6) to take all other actions necessary and appropriate to carry out any of the foregoing responsibilities; and (7) to report to and receive further direction from the Court, as reguested by the receiver, the Court or the parties.
Linscott v. Foy, No. CV-90-67, slip op. (Sup. C t . of York County,
Maine, June 15, 1992 (Brennan, J.).
Robinson's authority to hire counsel for S.M.A. could arise
either from his duty "to oversee and manage the day-to-day
operations of the corporation, " or from his responsibility to
"make decisions concerning the hiring and termination of
employees of the corporation." See id. Moreover, contrary to
19 plaintiff's contentions, the court order neither expressly nor
implicitly states that Robinson would have to return to the court
in order to receive authorization to hire counsel to represent
S.M.A. Although Robinson would have demonstrated more prudence
had he first petitioned the York County Superior Court for leave
to hire counsel to represent S.M.A., he does not appear to have
contravened the court's order or to have acted wholly outside the
scope of his authority.
Nonetheless, a further point deserves brief attention. The
superior court order provides that upon request of the court, the
parties, or the receiver, that court would provide further
direction for the receiver. See id. Thus it appears that Foy,
being a named party to that action, has the ability to request a
hearing with the court if he contests Robinson's authority to
hire counsel for S.M.A. Should Foy decide to make such a request
with the superior court, this court will entertain an
appropriately supported motion to stay this action pending
resolution of the issue by the state court.
Finally, plaintiff's claim of conflict of interest is also
unpersuasive. Plaintiff asserts that because Robinson's counsel,
the Sheehan firm, represented other parties adverse to S.M.A.'s
sole owner, Foy, in a case pending in a court sitting in
20 Rockingham County, New Hampshire, said firm's representation of
S.M.A. here would be a conflict of interest. The court can find
no "conflict" in a law firm's decision to represent different
parties, all of whom are adverse to plaintiff's interest. For
all of these reasons, plaintiff's motion to disqualify must be
and herewith is denied.
Conclusion
For the reasons set forth herein, the court denies the
following motions: (1) defendant Robinson's motion to dismiss for
lack of personal jurisdiction (document 4) insofar as the
complaint contains claims against him personally; (2) S.M.A.'s
and Receiver's motion for change of venue (document 7), (3)
S.M.A.'s and Receiver's motion to dismiss for improper venue
(document 8), and (4) plaintiff's motion to disqualify counsel
for defendant S.M.A. (document 25).
SO ORDERED.
Shane Devine, Senior Judge United States District Court
September 30, 1996
cc: Gregory T. Uliasz, Esq. Edward A. Haffer, Esq. James E. Townsend, Esq. Sidney Thaxter, Esq.