Order on Document Titled “Motion To Address Potential Counsel Conflicts and To Stay Proceedings Pending Resolution.” In nondischargeability action, pro se Defendants filed counterclaims, and a third-party complaint against additional named individuals, including Plaintiff’s counsel. Plaintiff and third-party defendants moved for a protective order and sanctions against Defendants. Defendants then filed a document titled “Motion To Address Potential Counsel Conflicts and To Stay Proceedings Pending Resolution” which the Court liberally construed as a motion to disqualify Plaintiff’s counsel and stay further proceedings on the motion for protective order as well as the motion for sanctions. The Court denied all relief requested by Defendants. The Court found that since Defendants are not current or former clients of Plaintiff’s counsel, they cannot disqualify Plaintiff’s counsel under N.C. R. Prof. C. 1.7. Additionally, Defendants could not disqualify Plaintiff’s counsel under N.C. R. Prof. C. 3.7, which provides that a lawyer generally cannot act as an advocate at a trial in which she is likely to be a necessary witness, because Defendants’ statements were conclusory and insufficient to show Plaintiff’s counsel would be necessary witnesses.
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(Judge: Benjamin A. Kahn)
(Judge: Benjamin A. Kahn)
Order on Document Titled “Defendants Amended Answer to Amended Complaint and Amended Counterclaim.” Plaintiff seeks a declaration of exception to discharge for a debt owed to Plaintiff by Defendants under 11 U.S.C. § 523(a)(6). Defendants, proceeding pro se, filed a 12(b)(6) motion to dismiss , which the Court denied. Defendants filed a motion for reconsideration and the Court denied the motion. Subsequently, Defendants filed an answer, an amended answer adding counterclaims, and a third-party complaint. Thereafter, Defendants filed a document titled “Defendants Amended Answer to Amended Complaint and Amended Counterclaim.” In it, Defendants asked the Court to determine whether Plaintiff holds a cognizable debt for nondischargeability purposes and stated they did not assert any claims for damages, requests for sanctions, or claims against third parties. Under Fed. R. Civ. P. 41(a)(1)(A), a party may voluntarily dismiss a pleading, including third-party complaints, by filing a notice of dismissal before the opposing party serves an answer or a motion for summary judgment. Because the third-party defendants had not filed an answer or moved for summary judgment, the Court construed the filing as a voluntarily dismissal of the third-party complaint. Under Fed. R. Civ. P. 15(a)(2), a party may amend a pleading for a second time only with the consent of the opposing party or the court’s leave. Therefore, the Court liberally construed the document as a request for leave to amend Defendants’ amended answer to voluntarily dismiss Defendants’ counterclaims. Finally, because the Court had previously determined that Plaintiffs had stated a claim under Rule 12(b)(6), the Court liberally construed the request for a determination of whether Plaintiff held a cognizable debt as a motion to reconsider the Court’s prior order denying Defendants’ motion to dismiss as well as the Court’s order denying Defendants’ motion to reconsider. The Court allowed Defendants seven days to file a statement explaining how the Court had misinterpreted the filing. The Court stayed any time within which Plaintiff and third-party defendants must respond to the motion for leave to amend and the motion to reconsider, or to respond to the counterclaims and third-party complaint pending further order of the Court.
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