Fornaro v. Gannon , 124 F. App'x 8 ( 2004 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1816
REX FORNARO,
Plaintiff, Appellant,
v.
WILLIAM S. GANNON, ET AL.,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge,
Rex Fornaro on brief pro se.
Michael M. Lonergan, Margaret H. Nelson and Sulloway & Hollis,
P.L.L.C., on brief for appellees.
December 1, 2004
Per Curiam. Pro se plaintiff Rex Fornaro appeals a district
court order that granted the defendants summary judgment in this
legal malpractice action. Plaintiff maintains that the defendants,
New Hampshire attorney William S. Gannon and the law firm of
Wadleigh, Starr & Peters, PLLC (WS&P), negligently litigated
certain retaliatory discharge claims against plaintiff's former
employer in the New Hampshire bankruptcy court. While plaintiff
has correctly identified minor errors in the district court's
description of the evidence, we conclude that the court reached the
correct result and that the plaintiff's claims of procedural error
also fail. Accordingly, we affirm, for the reasons explained
below.
I.
Between 1993 and 1994, plaintiff worked as a flight dispatcher
for Business Express Airlines (BEX). On February 28, 1994, BEX
fired plaintiff. Plaintiff secured Connecticut counsel and filed
a civil wrongful discharge action against BEX in the Connecticut
superior court. Inter alia, his complaint alleged that BEX
terminated plaintiff for reporting BEX's alleged violation of
flight safety statutes and regulations to the Federal Aviation
Administration (FAA) and to other agents, servants, or employees of
BEX. Plaintiff sought compensatory and punitive damages on the
grounds that BEX discharged him for exercising his constitutional
rights to free speech, as protected by Conn. Gen. Stat. Ann, § 31-
-2-
51q, and in violation of Connecticut's Whistleblower Law, Conn.
Gen. Stat. Ann. § 31-51m.1
BEX removed plaintiff's civil action to federal court.
Thereafter, an involuntary Chapter 11 petition for BEX's bankruptcy
was filed with the New Hampshire bankruptcy court, and plaintiff's
Connecticut counsel filed a proof of claim on his behalf.
Plaintiff then hired the defendants to represent him on his
retaliatory discharge claims against BEX in the New Hampshire
bankruptcy court.2 Attorney Gannon represented plaintiff in a two-
day trial of these claims. Plaintiff maintained that BEX fired him
because he made an anonymous telephone complaint about BEX's short-
staffing to the FAA on January 29, 1994, one month before his
discharge. Testifying on behalf of BEX's Official Unsecured
Creditors Committee (OUCC), plaintiff's former supervisors at BEX
maintained that they fired plaintiff for chronic tardiness and that
they did not know about his anonymous complaint to the FAA when
they fired him.
The bankruptcy court disallowed plaintiff's claim in its
entirety. Assuming that both of plaintiff's statutory claims were
based on his anonymous complaint to the FAA, the bankruptcy judge
1
Plaintiff's complaint also asserted common law claims that
are not implicated in the instant appeal. We do not address them.
2
The defendants also filed a separate civil action against
BEX's officers and directors on plaintiff's behalf. The district
court dismissed that action, and this court summarily affirmed.
See Fornaro v. McManus, 187 F.3d 621 (1st Cir. 1998)(Table).
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ruled that plaintiff failed to prove that BEX terminated him in
violation of Conn. Gen. Stat. Ann. §§ 31-51m and 31-51q because the
evidence failed to show that BEX knew about that complaint before
it fired plaintiff. The judge further concluded that even if BEX
had such knowledge, plaintiff's supervisors had established that
plaintiff's tardiness was a legitimate, non-retaliatory reason for
his discharge and that plaintiff had failed to prove that this
reason was a pretext.
Still represented by attorney Gannon, plaintiff appealed the
bankruptcy court's decision to the district court. While that
appeal was pending, plaintiff consulted attorney John Burwell
Garvey at present defense counsel's law firm (Sulloway and Hollis)
with an eye toward securing representation in this legal
malpractice action. Ultimately attorney Garvey declined to
represent plaintiff. Seeking $10 million in damages, plaintiff
filed a pro se complaint for legal malpractice that alleged, inter
alia, that attorney Gannon negligently failed to present sufficient
evidence that BEX fired plaintiff in retaliation for his complaint
to the FAA. Attorney Gannon promptly withdrew from plaintiff's
bankruptcy appeal, and the district court allowed plaintiff's pro
se motion to dismiss it. Present defense counsel filed an answer
approximately four months after attorney Garvey had declined to
take plaintiff's side in this case.
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At the initial pretrial conference plaintiff suggested that
defense counsel might have a conflict of interest because plaintiff
had consulted another attorney at Sulloway and Hollis before he
filed this lawsuit. Defense counsel indicated that he had looked
into the matter and did not believe that he had a conflict of
interest. The magistrate judge gave plaintiff until December 1,
2000 to file a motion to disqualify defense counsel. Plaintiff did
not do so.
Approximately one year later, plaintiff secured his own
counsel.3 The parties engaged in discovery and the court scheduled
a jury trial to begin on May 6, 2003. One day before the filing
deadline for the defendants' motion for summary judgment,
plaintiff's counsel both moved to withdraw. Citing only
"irreconcilable disputes and conflicts ... concerning litigation
strategy and other substantive matters," counsel informed the court
that plaintiff opposed withdrawal and requested an in camera
hearing. Without holding a hearing, the district court promptly
allowed counsel's motions.
Plaintiff moved for reconsideration. Inter alia, he
complained that neither of his attorneys had identified a reason
that justified his withdrawal with a trial date set and a
dispositive motion pending and that the court should hold a hearing
3
Plaintiff was represented by two attorneys in the district
court. A Massachusetts attorney served as lead counsel and a New
Hampshire attorney appeared as local counsel.
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and deny counsel's motions or, alternatively, extend all deadlines
by sixty (60) days. After plaintiff's now-withdrawn attorneys
filed oppositions, the district court denied plaintiff's motion for
reconsideration while granting his request for an extension.
Judged from the time plaintiff submitted his motion for
reconsideration, plaintiff received another sixty (60) days to find
new counsel and ninety (90) days to oppose the defendants' motion
for summary judgment.
Stripped of his own counsel by the order denying
reconsideration, plaintiff sought to disarm his opponents by filing
a motion to amend his complaint to name Sulloway and Hollis and the
attorney he had previously consulted there, John Burwell Garvey, as
defendants. Plaintiff purported to state a separate legal
malpractice claim against these attorneys on the ground that
attorney Garvey gave plaintiff bad advice about the statute of
limitations that governed his malpractice claim against attorney
Gannon. In addition, plaintiff alleged that he gave attorney
Garvey privileged information to see if Garvey would represent him
in this case, that present defense counsel improperly had access to
that information, and that the district court should discipline
Sulloway and Hollis for unethical conduct. The defendants urged
the court to deny plaintiff's motion to amend his complaint and to
sanction plaintiff for trying to force a change in defense counsel
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long after the deadline for filing a motion for disqualification
had expired.
The magistrate judge denied plaintiff's motion to amend his
complaint as both "untimely (unduly delayed and prejudicial so
close to trial) and as futile (failing to state a cause of
action)." Plaintiff filed a motion for reconsideration and a
motion for leave to file a reply to the defendants' objection to
his motion to amend his complaint that specifically asked the
district court to disqualify present defense counsel on the ground
that plaintiff had disclosed confidential information to attorney
Garvey. Without specifically addressing the disqualification
issue, the magistrate judge endorsed plaintiff's proposed reply
"moot" in light of his previous order denying plaintiff's motion to
amend his complaint. Plaintiff's motion for reconsideration of
that order remained pending.
Thereafter, the district court docketed plaintiff's timely
opposition to the defendants' motion for summary judgment and the
defendants' reply to same. Two days later, the district judge
announced that he had decided to grant the defendants' motion and
that an opinion justifying the court's decision would follow.
Plaintiff moved for reconsideration. The court then issued an
unpublished opinion which ruled that none of the evidence that
plaintiff claimed attorney Gannon should have offered in the
bankruptcy court would have made any difference to the trial's
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outcome because that evidence still failed to show that BEX knew
about plaintiff's complaint to the FAA. Simultaneously, the court
denied plaintiff's motion for reconsideration of the summary
judgment order and his motion for reconsideration of the order
denying his motion to amend his complaint to add Sulloway and
Hollis and attorney Garvey as defendants. Plaintiff filed a timely
notice of appeal.
II.
On appeal, plaintiff argues that the district court erred in
granting the defendants summary judgment. In addition, plaintiff
contends that the district court abused its discretion by allowing
his attorneys to withdraw and thereafter denying plaintiff's motion
to amend his complaint to make Sulloway and Hollis and attorney
John Burwell Garvey defendants. Repeatedly citing Pearson v. First
N.H. Mortgage Corp., 200 F.3d 30 (1st Cir. 1999), plaintiff implies
that he deserves a second bite at the apple because the district
court required him to proceed pro se involuntarily and because
defense counsel has a conflict of interest. We disagree.
We review the orders granting plaintiff's attorneys' motions
to withdraw only for an abuse of discretion. See, Andrews v.
Bechtel Power Corp., 780 F.2d 124, 134 (1st Cir. 1985). Plaintiff
contends that the district court abused its discretion by allowing
his attorneys to withdraw with a trial date set, a dispositive
motion pending, and without the requisite showing of "good cause"
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or a hearing on counsel's motions. Defendants say that the
district court did not abuse its discretion because the court gave
plaintiff sufficient time to find new counsel and respond to their
summary judgment motion. The defendants have the better argument.
Counsel's motions to withdraw were governed by New Hampshire
Rule of Professional Conduct 1.16. In relevant part, this rule
provides that: "a lawyer ... shall withdraw ... if (1) the
representation will result in violation of the rules of
professional conduct ....[,]" see Rule 1.16(a), and that: "a lawyer
may withdraw ... if withdrawal can be accomplished without material
adverse effect on the interests of the client, or if:...(6) other
good cause for withdrawal exists." See Rule 1.16(b)(emphasis
supplied). The Comments to this rule suggest that the district
court had the discretion to treat plaintiff's counsel's
representation that "irreconcilable disputes and conflicts" existed
as sufficient cause for withdrawal without requiring counsel to
spell out the conflicts at an in camera hearing.4 Moreover, here
4
The ABA Model Code Comments that accompany Rule 1.16
recognize that:
Difficulty may be encountered if withdrawal is based on
the client's demand that the lawyer engage in
unprofessional conduct. The court may wish an
explanation for the withdrawal, while the lawyer may be
bound to keep confidential the facts that would
constitute such an explanation. The lawyer's statement
that professional considerations require termination of
the representation ordinarily should be accepted as
sufficient. (emphasis supplied).
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the plaintiff and his counsel were able to air their dispute
through plaintiff's motion for reconsideration and subsequent
filings which confirmed that their relationship had become
acrimonious. Since plaintiff had represented himself during the
first year and a half that this case was pending and trial was
still two months away when the court denied reconsideration, the
court could reasonably assume that allowing withdrawal would not
have a material adverse effect on plaintiff. The district court
gave plaintiff a fair shot at finding successor counsel and
opposing the defendants' motion for summary judgment by granting
plaintiff the extensions he requested.
If more were needed, we note that the record suggests that
plaintiff and his counsel had at least one serious disagreement
over what the rules of professional conduct required plaintiff's
counsel to do in light of defense counsel's inadvertent disclosure
of a privileged communication. This alone supplies "good cause"
for withdrawal. The district court did not abuse its discretion by
allowing plaintiff's counsel to withdraw.
Similarly, the district court did not abuse its discretion by
denying plaintiff's motion to amend his complaint. Insofar as
plaintiff sought to add a separate legal malpractice claim against
attorney Garvey and Sulloway and Hollis, his proposed amended
complaint both failed to state a viable claim and was unsupported
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by the record. See Hatch v. Dep't of Children, Youth and Their
Families, 274 F.3d 12, 19 (1st Cir. 2001). The defendants'
submissions showed that plaintiff could not reasonably have relied
on any comment attorney Garvey might have made about the statute of
limitations when plaintiff filed this lawsuit because attorney
Garvey expressly warned plaintiff not to rely on Sulloway and
Hollis at that point. See Sheinkopf v. Stone, 927 F.2d 1259, 1264-
65 (1st Cir. 1991)(attorney-client relationship may be implied only
where record shows purported client's reliance on attorney was
objectively reasonable or that attorney knowing of such reliance
did nothing to negate it)(citation omitted).5
We also reject plaintiff's contentions that the district court
should have disqualified Sulloway and Hollis in response to the
allegations raised in plaintiff's motion to amend his complaint and
that this court should do so now.6 To be sure, an attorney's
fiduciary duties may be triggered by an initial consultation even
if employment does not result. See, e.g., Westinghouse Electric
Corp. v. Kerr-McGee Corp., 580 F.2d 1311 (7th Cir. 1978); Polyagro
5
It is also clear that plaintiff had decided to sue attorney
Gannon and WS&P before he contacted Sulloway and Hollis and that
plaintiff voluntarily dismissed his bankruptcy appeal after
attorney Gannon properly withdrew from it. Plaintiff has only
himself to blame for the loss of this avenue of review.
6
We reject defendants' claim that plaintiff has waived the
disqualification issue. "Failures to object, unless a true waiver
is involved, are almost always subject to review for plain error."
See Chestnut v. City of Lowell, 305 F.3d 18, 19 (1st Cir. 2002)(en
banc)(per curiam).
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Plastics, Inc. v. Cincinnati Milacron, Inc., 903 F. Supp. 253, 256
(D.P.R. 1995). And the fact that the defendants' submissions
showed that Sulloway and Hollis never represented plaintiff in this
lawsuit does not necessarily mean that plaintiff did not disclose
confidential information to attorney Garvey that might have
disqualified Sulloway and Hollis from defending this case. But
even if we assume that plaintiff made such a disclosure,
disqualification was not required absent some showing that this
gave defendants an unfair advantage in this case. See Kevlik v.
Goldstein, 724 F.2d 844, 848 (1st Cir. 1984)(holding dilatory
disqualification motions may be granted when either the court's
confidence in the attorney's vigorous representation of his client
is threatened or the attorney is in a position to use privileged
information to the unfair advantage of the new client)(citations
omitted). Plaintiff made no such showing. Absent an actual
adverse effect, "merely 'conducting [a] trial with counsel that
should have been disqualified does not "indelibl[y] stamp or taint"
the proceedings.'" See Fiandaca v. Cunningham, 827 F.2d 825, 831
(1st Cir. 1987)(citations omitted). Similarly, because plaintiff
has failed to show how any alleged conflict on the part of defense
counsel tainted the summary judgment proceedings, he is not due a
second bite at the apple now.
III.
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Finally, we turn to the summary judgment. Like the bankruptcy
court, the district court assumed that plaintiff's Connecticut
whistleblower and free speech claims both rested on the theory that
BEX fired him in retaliation for his anonymous complaint to the
FAA. On appeal, plaintiff argues that this was error, that his
"true § 31-51q claim" did not require him to prove that BEX knew
about his complaint to the FAA, and that the district court
erroneously overlooked this claim and failed to view the record in
the light most favorable to him. We recognize that the district
court overlooked certain evidence (e.g., the Costa tape) and that
the court did not address what plaintiff now says was his "true §
31-51q" claim. Even when we account for these omissions, the
record fails to show that attorney Gannon's alleged malpractice
even arguably caused the loss of plaintiff's retaliatory discharge
claims.
We review the district court's decision de novo, mindful that
"on a motion for summary judgment all reasonable inferences must be
drawn in favor of the non-moving party, regardless of who bears the
ultimate burden of proof." See Douglas v. York County, 360 F.2d
286, 288 (1st Cir. 2004). The record discloses that plaintiff
worked for BEX for approximately one year, during which he commuted
to BEX's Westport, Connecticut headquarters from his home in Long
Ann, New Jersey. Sometimes, plaintiff was late for work. Although
plaintiff insists that it was all a fabrication, the OUCC's
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evidence before the bankruptcy court disclosed that plaintiff was
late at least five times before he engaged in any arguably
protected conduct. Indeed, on January 4, 1994, plaintiff's
supervisor (DiPaola) warned plaintiff that he would be terminated
if he was late once more.7
On January 29, 1994, plaintiff made an anonymous telephone
complaint to the FAA about BEX's shortstaffing. On the following
day, plaintiff made similar complaints to BEX managers O'Brien and
Heller in two separate telephone conversations that plaintiff
secretly tape-recorded.8 In these conversations, plaintiff
protested the fact that he was scheduled to work the next day
(1/31/94) even though he had not had enough time off to rest to
enable him to dispatch aircraft safely. Although plaintiff
emphasized that BEX should employ enough staff to operate its
airline safely, he also complained that BEX had scheduled him to
work in retaliation for a grievance that he had previously filed,
and he only agreed to work (and indeed, did work) after Heller
assured him that he would be paid time and a half for his efforts.
A few days after that (i.e., on 2/4/94), BEX supervisor Heller
called plaintiff into his office and, after noting that plaintiff
had once worked for the FAA, warned plaintiff that he would be
fired if he was late for work again or if he released a flight
7
The district court erroneously attributed this warning to
supervisor Heller. The Heller warning came one month later.
8
Heller eventually realized that he was being taped.
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late. BEX records indicate that plaintiff thereafter was late
several more times before his February 28th discharge.
Plaintiff maintains that the foregoing chain of events
suffices to prove that BEX fired him in retaliation for his 1/29/94
anonymous complaint to the FAA (in violation of § 31-51m and § 31-
51q), and, if not for that, then for his 1/30/94 telephone
complaints to managers O'Brien and Heller (in violation of § 31-51q
only). We disagree. The record shows only that it was just barely
possible that the FAA investigated plaintiff's complaint, and there
was no evidence that, if any such investigation occurred, it
occurred under circumstances that would have suggested that
plaintiff had triggered the investigation. On this record, the
proffered admissible evidence was simply too weak and speculative
to permit a rational factfinder to infer that BEX fired plaintiff
for whistleblowing. Thus, summary judgment on this aspect of
plaintiff's legal malpractice claim was proper. See 5 R. Mallen &
J. Smith, Legal Malpractice, § 33.11, p. 87 (5th ed. 2000)("A
possibility is not sufficient to allow an issue to go to the jury,
even if the attorney's negligence impaired the client's ability to
marshal the necessary evidence."). See also, Witte v. Desmarais,
614 A.2d 116, 120-21 (N.H. 1992)(causation is not for jury where
reasonable minds can not differ on the outcome); Arnone v. Town of
Enfield, 831 A.2d 260, 267 (Conn. 2003)(holding plaintiff must
"produce sufficient evidence to remove the jury's function of
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examining inferences and finding facts from the realm of
speculation").9
Similarly, we conclude that no reasonable jury could find that
BEX discharged plaintiff "on account of" the safety-related
statements that he made to his supervisors in the context of
complaining about his work schedule. See, e.g., Lowe v. Amerigas,
Inc., 52 F. Supp. 2d 349 (D.Conn. 1999)(citations omitted). On this
record, the evidence of plaintiff's tardiness that was before the
bankruptcy court remains essentially unimpeached. As the district
court correctly noted, the report of plaintiff's aviation expert
did nothing to undermine the evidence of plaintiff's tardiness.
Plaintiff's unsupported claims of fabrication add nothing to his
case. See Fennell v. First Step Designs, Ltd., 83 F.3d 526, 533-37
(1st Cir. 1996). The record shows that, saddled with a lengthy
commute, plaintiff was sometimes late for work notwithstanding
repeated warnings. Even when the evidence attorney Gannon did not
offer is factored into the picture, no reasonable jury could find
that plaintiff's complaints to the FAA or to BEX managers prompted
his discharge. Therefore, the district court did not err by
granting defendants summary judgment on plaintiff's legal
malpractice claims.
9
Contrast, LaFond v. General Physics Services Corp., 50 F.3d
165 (2d cir. 1995)(vacating summary judgment where plaintiff
himself informed employer of his whistleblowing activity). Here
plaintiff has not suggested that he told anyone at BEX that he had
complained to the FAA.
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The appellees' motion to file a sur-reply brief is allowed.
The judgment of the district court is summarily affirmed. See Loc.
Rule 27(c).
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