Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Jeffrey C. Lutz,

) ) Plaintiff, ) ) vs. ) ) City of Phoenix, et al., ) ) Defendants. ) ______________________________)

CV 04-482-PHX-MS

ORDER

The Court is in receipt of Plaintiff's "Motion for Relief From Judgement [sic] or
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Order Under Rule 60b(1);(3)" (Doc. # 53). Defendants did not file a response.
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On July 13, 2005, this Court granted Defendant's Motion for Summary Judgment
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(Doc. # 45), and entered judgment in favor of Defendant. Plaintiff now comes before
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the Court seeking relief pursuant to Federal Rule of Civil Procedure 60(b), arguing that
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he has discovered that his attorney, Scott Ambrose, represented one George Moya Jr.
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in an unrelated matter. Mr. Moya is the son of the alleged victims in the case which
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provides the factual underpinning to Plaintiff's suit against the City of Phoenix Police
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Department. Neither Mr. Moya nor his parents are parties to the instant case. Plaintiff
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claims that his mistake in hiring Scott Ambrose provides sufficient basis to grant relief
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under Rule 60(b).
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FED. R. CIV. P. 60(b) provides, in pertinent part, that "the court may relieve a party
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or a party's legal representative from a final judgment, order, or proceeding for the
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following reasons: (1) mistake, inadvertence, surprise, or excusable neglect . . . (3)
Case 2:04-cv-00482-ECV Document 56 Filed 11/07/2005 Page 1 of 3

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fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party[.]" Here, Plaintiff avers that his mistake in hiring an attorney who, Plaintiff claims, had a conflict of interest, is the type of mistake where relief is justified under Rule 60(b)(1). However, Plaintiff has not provided any evidence that his attorney knew about this conflict of interest when he agreed to represent Plaintiff, or that his attorney even knew about the potential conflict at all. Moreover, even if Plaintiff could show that his attorney did have a conflict of interest, Plaintiff would still be unsuccessful in his motion for relief under Rule 60. See Allmerica Financial Life Insurance And Annuity Co. v. Llewellyn, 139 F.3d 664, 666 (9th Cir. 1997) ("attorney error is insufficient grounds for relief under . . . Rule 60(b)(1)[.]"); see also Casey v. Albertson's Inc., 362 F.3d 1254, 1260 (9th Cir. 2004) (holding alleged attorney malpractice does not usually provide a basis to set aside a judgment pursuant to Rule 60(b)(1)). Moreover, assuming Plaintiff is correct in his contention that his attorney represented the son of his alleged victims in another matter, that conduct would not contravene the Model Rules of Professional Conduct, specifically the rule pertaining to duties to former clients.1 Model Rule 1.9 provides "[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing." MODEL RULES OF PROF'L CONDUCT R. 1.9 (2003). Here, the matter for which Mr. Ambrose represented Plaintiff was, by Plaintiff's own account, wholly unrelated to Plaintiff's lawsuit, and does not implicate Model Rule 1.9. Therefore, Plaintiff's argument is unavailing.
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The professional conduct of members of the Arizona Bar is governed by the Model Rules of Professional Conduct of the American Bar Association. See Rules of Arizona Supreme Court, Rule 42, Arizona Rules of Professional Conduct. Case 2:04-cv-00482-ECV 2 Document 56 Filed 11/07/2005 Page 2 of 3

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Most importantly, Plaintiff cannot escape the fact, after the withdrawal of his attorney, he was given over four months to respond to Defendants' Motion for Summary Judgment, and failed to do so. Accordingly, Plaintiff is not entitled to relief under Rule 60(b)(1). Plaintiff also argues that he is entitled to relief under Rule 60(b)(3). However, that provision of the Rule provides relief when a party is the victim of fraud, misrepresentation, or other misconduct by an adverse party. Plaintiff has not alleged any fraud or misconduct by an adverse party, and therefore is not entitled to relief pursuant to Rule 60(b)(3).

In accordance with the foregoing, IT IS ORDERED that Plaintiff's "Motion for Relief From Judgement [sic] or Order Under Rule 60b(1);(3)" (Doc. # 53) is DENIED.

DATED this 3rd day of November, 2005.

Case 2:04-cv-00482-ECV

3 Document 56

Filed 11/07/2005

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