Patton Boggs LLP v. Chevron Corporation ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PATTON BOGGS, LLP,
Plaintiff,
v. Civil Action 10-01975 (HHK)
CHEVRON CORPORATION,
Defendant.
MEMORANDUM OPINION
The law firm of Patton Boggs, LLP brings this action against Chevron Corporation,
seeking a declaratory judgment that Patton Boggs’s representation of parties adverse to Chevron
in other courts does not violate standards of professional conduct such that it could be
disqualified from participating in those cases. Patton Boggs also seeks leave to amend its
complaint to add claims of tortious interference and civil conspiracy against Chevron and
Chevron’s counsel, Gibson, Dunn & Crutcher, LLP.1 Before the Court are: Patton Boggs’s
motion for leave to amend [#19]; Chevron’s motion to dismiss this action [#5]; and Patton
Boggs’s cross-motion to strike Chevron’s motion to dismiss [#12]. Upon consideration of the
motions, the oppositions thereto, and the record of this case, the Court concludes that Patton
Boggs’s motions must be denied and Chevron’s motion to dismiss must be granted.
1
All of the claims in Patton Boggs’s original and proposed amended complaints are
predicated on this Court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332.
I. BACKGROUND
This action constitutes the latest chapter in a sprawling dispute between Chevron and
various parties in Ecuador regarding the operations of an oil consortium that allegedly caused
extensive environmental damage in the Ecuadorian Amazon. Chevron inherited this dispute in
2001 via a merger with Texaco. Texaco was originally sued in the U.S. District Court for the
Southern District of New York, but that action was dismissed, at the urging of both Texaco and
the government of Ecuador, on forum non conveniens grounds. See Aguinda v. Texaco, Inc., 303
F.3d 470 (2d Cir. 2002). Subsequently, 48 Ecuadorian plaintiffs sued Chevron in Lago Agrio,
Ecuador. On February 14, 2011, the Lago Agrio court issued a multi-billion dollar judgment
against Chevron. See Chevron Corp. v. Steven Donziger, No. 11-0691, slip op. at 52–53
(S.D.N.Y. March 7, 2011). Chevron asserts that the proceedings in Ecuador were tainted by
misconduct and lacked basic due process protections; whether that is true is beyond the scope of
this action. What is of significance here is that, to aid in its defense of the Lago Agrio litigation,
Chevron instituted proceedings in multiple federal courts under 28 U.S.C. § 1782, which
authorizes district courts to issue orders permitting discovery for use in foreign proceedings. See
Compl. ¶¶ 2, 19.
Chevron also retained the Breaux Lott Leadership Group (“Breaux Lott Group”), a
consulting and lobbying organization headed by former U.S. Senators John Breaux and Trent
Lott, to assist with the Lago Agrio dispute. Compl. ¶ 25. The Breaux Lott Group represented
Chevron from February 2008 to July 2010. In July 2010, Patton Boggs acquired the Breaux Lott
Group. Compl. ¶ 30. It subsequently asked Chevron to waive a potential conflict of interest
2
arising from Patton Boggs’s representation of the government of Ecuador. Chevron refused and
terminated its relationship with the Breaux Lott Group.
In November 2010, Patton Boggs entered an appearance on behalf of the Lago Agrio
plaintiffs before the U.S. Court of Appeals for the Second Circuit. See In re Chevron Corp., No.
10-4341 (2d. Cir. Nov. 11, 2010) (notice of appearance). This prompted Chevron to write to
Patton Boggs via its counsel, expressing “grave concerns that [Patton Boggs’s] appearance in this
matter constitutes a conflict of interest that could result in disqualification,” reserving “the right
to take any action we deem appropriate,” and requesting a response by November 16, 2010.
Def.’s Mot. to Dismiss Ex. A (letter from Randy M. Mastro to James E. Tyrrell, Jr. (Nov. 13,
2010)) at 1–2. Patton Boggs replied that it had reviewed the situation and concluded that its
withdrawal was not required. See Def.’s Mot. to Dismiss Ex. C (letter from James E. Tyrrell, Jr.
to Randy M. Mastro (Nov. 17, 2010)). Patton Boggs subsequently entered appearances on behalf
of the Lago Agrio plaintiffs in several more of Chevron’s § 1782 actions.
Patton Boggs filed this action on November 17, 2010, seeking a declaratory judgment that
“the Breaux Lott Leadership Group’s prior non-legal work for Chevron does not provide a basis
for disqualifying Patton Boggs from representing the Ecuadorian Plaintiffs.” Compl. at 10
(prayer for relief). Chevron then moved to dismiss this case on multiple grounds. Patton Boggs
responded by moving to strike Chevron’s motion to dismiss and requesting leave to amend its
complaint to include claims of tortious interference and civil conspiracy against both Chevron
and Gibson Dunn.
3
II. ANALYSIS
A. Patton Boggs’s Motion for Leave to Amend the Complaint
The Court first addresses Patton Boggs’s motion for leave to amend its complaint. Patton
Boggs seeks to add three new claims, all of which would apply to both Chevron and Gibson
Dunn: (1) tortious interference with a contract; (2) tortious interference with an attorney-client
relationship; and (3) civil conspiracy. These claims are based on what Patton Boggs terms a
“smear campaign designed to hamper Patton Boggs’ ability to represent its clients in accordance
with Patton Boggs’ contractual and ethical duties.” Pl.’s Mot. for Leave to Amend at 3.
A party seeking to amend its complaint more than once or after a certain period of time
may do so only by written consent of the adverse party or by leave of the court. FED . R. CIV . P.
15(a). Because leave is to be freely given when justice so requires, see id., a refusal to allow
amendment must be justified by a sufficiently compelling reason, such as undue delay, prejudice
to the non-moving party, bad faith, dilatory motive, repeated failure to cure deficiencies by
previous amendments, or futility of amendment. See Foman v. Davis, 371 U.S. 178, 182 (1962);
Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). The party opposing amendment has
the burden of establishing that it would be improper. Nwachukwu v. Karl, 222 F.R.D. 208, 211
(D.D.C. 2004).
Here, Chevron opposes Patton Boggs’s request on the ground that amendment would be
futile because Patton Boggs’s new claims would not survive a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6). See In re Interbank Funding Corp. Sec. Litig., 629 F.3d 213,
215 (D.C. Cir. 2010). Accordingly, the Court will address each count in the amended complaint
4
to determine whether it would survive a Rule 12(b)(6) motion to dismiss, i.e., whether it states a
claim upon which relief may be granted. See id. at 215–16.2 Because both parties assume that
District of Columbia law would govern Patton Boggs’s new claims, the Court will do likewise.
See In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, 1495 (D.C. Cir. 1991)
(“[C]ourts need not address choice of law questions sua sponte.”); Davis v. Grant Park Nursing
Home LP, 639 F. Supp. 2d 60, 65 (D.D.C. 2009) (where all parties assume that D.C. law applies,
“[t]he Court need not and does not question the parties’ assumptions on that point”); accord
Carranza v. Fraas, 2011 WL 380164, at *7 n.5 (D.D.C. Feb. 7, 2011).
1. Tortious Interference with Contract
Patton Boggs’s first new claim asserts that Chevron and Gibson Dunn have tortiously
interfered with a contract — namely, the contract between Patton Boggs and the Ecuadorian
plaintiffs in the Lago Agrio litigation. See Am. Compl. ¶¶ 68–79. Patton Boggs alleges that
Chevron and Gibson Dunn have done so by “engag[ing] in improper offensive tactics aimed at
forcing Patton Boggs to breach its contact with the Ecuadorian Plaintiffs with the ultimate aim to
deprive the Ecuadorian Plaintiffs of counsel.” Am. Compl. ¶ 75. The tactics in question
allegedly include intimidating witnesses, Am. Compl. ¶ 24, “burying” the Lago Agrio plaintiffs’
2
To survive a motion to dismiss under Rule 12(b)(6), a complaint does not need
detailed factual allegations. It must, however, recite facts sufficient to at least “raise a right to
relief above the speculative level . . . on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A
“pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action will not do.’” Ashcroft v. Iqbal, —U.S.—, 129 S. Ct. 1937, 1949 (2009) (quoting
Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’
devoid of ‘further factual enhancement.’” Id. (alteration in original) (quoting Twombly, 550 U.S.
at 557). At bottom, a complaint must contain sufficient factual matter that, accepted as true,
would allow the Court “to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id.5
counsel “beneath a mountain of discovery requests,” Am. Compl. ¶ 26, publicly asserting that the
Lago Agrio litigation is fraudulent, Am. Compl. ¶¶ 27, 36, and threatening to seek Patton
Boggs’s disqualification from Chevron’s various § 1782 actions. Am. Compl. ¶ 33. Chevron
argues that the amended complaint fails to allege facts establishing a plausible claim to relief for
tortious interference. Chevron is correct.
Under D.C. law, a successful tortious interference claim requires: the existence of a
contract; knowledge of the contract by the defendant; the defendant’s intentional procurement of
the contract’s breach; and damages resulting from that breach. Murray v. Wells Fargo Home
Mortg., 953 A.2d 308, 325 (D.C. 2008).3 Chevron points out that Patton Boggs’ proposed
complaint alleges not that such a breach has actually occurred (or that damages resulted), but
rather that Chevron and Gibson Dunn’s conduct is “aimed at forcing Patton Boggs to breach its
contract.” Am. Compl. ¶ 75 (emphasis added). Chevron thus argues that Patton Boggs has not
stated a claim for tortious interference.
Patton Boggs responds that it has alleged that Chevron and Gibson Dunn “have as their
goal the ‘intentional procurement’ of the breach of” Patton Boggs’s contract with the Lago Agrio
plaintiffs, which, Patton Boggs avers, is sufficient to state a claim of tortious interference. Pl.’s
Reply to Def.’s Opp’n to Mot. for Leave to Amend [#23] at 12 (emphasis added). But Patton
3
Patton Boggs points out that some federal decisions have characterized the third
element as “intentional interference without justification.” See, e.g., Jones v. Meridian Towers
Apartments, Inc., 816 F. Supp. 762, 769 (D.D.C. 1993). That formulation, however, appears to
impose a lower bar than do more recent decisions by the District’s own highest court. See
Murray, 953 A.2d at 325. Accordingly, this Court will not employ it. See Indep. Petrochem.
Corp. v. Aetna Cas. & Sur. Co., 944 F.2d 940, 944 (D.C. Cir. 1991) (federal courts sitting in
diversity must determine how the highest court of the state would decide the question before
them).
6
Boggs misunderstands the law. “Unlike in some jurisdictions, courts in the District of Columbia
have held that a breach of contract is an essential element of” a tortious interference claim.
Murray, 953 A.2d at 326 (quoting Edmondson & Gallagher v. Alban Towers Tenants Ass’n, 48
F.3d 1260, 1266 (D.C. Cir. 1995)) (internal quotation marks omitted). Because Patton Boggs
does not allege any facts suggesting that such a breach has occurred, the Court cannot “draw [a]
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at
1949. Accordingly, Patton Boggs has failed to state a tortious interference claim, and
amendment to add this claim would be futile. See Murray, 953 A.2d at 325–26 (affirming the
dismissal of a tortious interference claim for failure to state a claim where there was no breach of
the contract at issue); see also Taylor v. FDIC, 132 F.3d 753, 761 (D.C. Cir. 1997) (“Dismissal
under Rule 12(b)(6) is proper when, taking the material allegations of the complaint as admitted,
and construing them in plaintiffs’ favor, the court finds that the plaintiffs have failed to allege all
the material elements of their cause of action.” (internal citations omitted)).
2. Tortious Interference with Attorney-Client Relationship
Patton Boggs’s second new claim similarly asserts that Chevron and Gibson Dunn have
tortiously interfered with Patton Boggs’s attorney-client relationship with the Lago Agrio
plaintiffs. See Am. Compl. ¶¶ 80–89. It is not clear, however, that “tortious interference with an
attorney-client relationship” exists as a discrete tort in the District of Columbia. The only case of
which the Court is aware that addresses such a claim is Barnes v. Quigley, 49 A.2d 467 (D.C.
1946), in which the Municipal Court of Appeals (the predecessor to the current D.C. Court of
Appeals) appeared to analyze a claim of “unlawful interference into the relationship between
attorney and client,” id. at 467, as one of interference with a contract or business relationship.
7
See id. at 468. Further, Patton Boggs neither identifies any case that establishes such a claim as
distinct from a normal tortious interference claim nor responds to Chevron’s argument that no
such cause of action exists. Accordingly, the Court concludes that such a claim is simply a type
of claim for interference with a contractual or business relationship. See 90 A.L.R. 4th 621, § II
(1991) (“Courts in many jurisdictions have [applied] to the attorney-client relationship the
general rule that wrongful interference by a third person with a contractual or business
relationship of another gives rise to liability in tort.”). As such, it fails for the same reasons that
the claim above fails.
3. Civil Conspiracy
Patton Boggs’s final new claim is one of civil conspiracy, based on the same allegations
that underpin the two tortious interference claims. This claim too must fail. In the District of
Columbia, civil conspiracy is not an independent tort; thus, a claim for civil conspiracy will not
lie in the absence of an underlying tortious act. Nader v. Democratic Nat’l Comm., 567 F.3d
692, 697 (D.C. Cir. 2009) (citing Hill v. Medlantic Health Care Grp., 933 A.2d 314, 334 (D.C.
2007); Exec. Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 738 (D.C. 2000)).
Because Patton Boggs’s underlying claims of tortious interference fail to state plausible claims
for relief, its conspiracy claim likewise falls short. Thus, none of Patton Boggs’s new claims
would survive a motion to dismiss under Rule 12(b)(6), and amendment of the complaint to
include them would be futile. Accordingly, Patton Boggs’s motion for leave to amend will be
denied.4
4
Because the Court concludes that amendment would be futile, it does not reach
Chevron’s additional argument that it should deny Patton Boggs’s motion for leave to amend
because Patton Boggs seeks to add these new claims in bad faith.
8
B. The Court Declines to Strike Chevron’s Motion
Patton Boggs next moves to strike Chevron’s motion to dismiss for including factual
assertions that are irrelevant or beyond the scope of the material that the Court can consider at
this stage. Patton Boggs acknowledges that, on a motion to dismiss under Federal Rules of Civil
Procedure 12(b)(1) or 12(b)(3), the Court can consider facts beyond those alleged in the
complaint, but asserts that Chevron’s motion contains numerous factual assertions that “go well
beyond the confines of the complaint and have nothing to do with the Court’s subject matter
jurisdiction or venue.” Pl.’s Opp’n to Def.’s Mot. to Dismiss at 9. Chevron responds that Patton
Boggs’s request is without legal support and further that it is permissible and commonplace for a
motion to provide basic background facts. The Court concludes that the motion to strike should
be denied.5
First, as Chevron observes, it is routine for parties to provide the Court with a certain
amount of background information that is not directly relevant to the merits of the claim or
motion at issue. This practice ensures that the Court understands the context in which the dispute
arose. See, e.g., Stanbury Law Firm v. IRS, 221 F.3d 1059, 1063 (8th Cir. 2000) (reversing a
grant of a motion to strike because the allegations at issue “provide[d] important context and
background to [the] suit”). Second, to the extent that the boundaries of this practice have been
5
The Court assumes for the purposes of this discussion that: (1) Patton Boggs’s
motion to strike is made under Rule 12(f), which allows the Court to “strike from a pleading any
redundant, immaterial, impertinent, or scandalous matter,” FED . R. CIV . P. 12(f); (2) Patton
Boggs seeks to strike Chevron’s motion because the factual assertions therein are “immaterial” or
“impertinent”; and (3) Rule 12(f) applies to motions, which are technically not “pleadings.” See
Fed. R. CIV . P. 12(b); BLACK’S LAW DICTIONARY (9th ed. 2009) (defining “pleading” as “[a]
formal document in which a party to a legal proceeding (esp. a civil lawsuit) sets forth or
responds to allegations, claims, denials, or defenses. In federal civil procedure, the main
pleadings are the plaintiff’s complaint and the defendant’s answer.”).
9
tested or exceeded here, both parties are guilty. Most of the filings in this action contain
prodigious amounts of “background” information related to the Lago Agrio litigation that is
largely irrelevant to either the merits of this action or the Court’s jurisdiction and appears
intended primarily to cast the other party in a negative light. Finally, none of the allegedly
extraneous allegations in Chevron’s motion to dismiss are potentially prejudicial to Patton
Boggs; rather, they deal with matters that the Court simply need not consider in resolving the
motion. See Nwachukwu, 216 F.R.D. at 178 (“[M]any courts will grant . . . motions [to strike]
only if the portions sought to be stricken are prejudicial or scandalous.”). For that reason, and
because “[c]ourts disfavor motions to strike,” id., the Court will not strike the motion to dismiss.
Accordingly, the Court will now turn to the merits of that motion.
B. Chevron’s Motion to Dismiss
Chevron seeks the dismissal of Patton Boggs’s declaratory judgment claim on several
grounds. It asserts that this dispute is not yet ripe; that this Court should use its discretion under
the Declaratory Judgment Act to decline to adjudicate the propriety of Patton Boggs’s
participation in matters in other districts; and, similarly, that the District of Columbia is the
wrong venue for the resolution of this action. Chevron’s arguments are persuasive.
1. Ripeness6
6
Chevron’s ripeness argument seeks the dismissal of this action under Federal Rule
of Civil Procedure 12(b)(1), which authorizes a defendant to move to dismiss a complaint, or any
portion thereof, for lack of subject-matter jurisdiction. FED . R. CIV . P. 12(b)(1); see Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (“Federal courts are courts of limited
jurisdiction. . . . It is to be presumed that a cause lies outside this limited jurisdiction . . . .”). In
response to such a motion, the plaintiff bears the burden of establishing federal jurisdiction. See
Shuler v. United States, 531 F.3d 930, 932 (D.C. Cir. 2008). If the plaintiff is unable to do so,
the Court must dismiss the action. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94
(1998) (citing Ex parte McCardle, 7 Wall. 506, 514 (1868)).
10
The ripeness doctrine is intended “to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract disagreements,” Abbott Labs. v. Gardner,
387 U.S. 136, 148 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99(1977), and is “drawn both from Article III limitations on judicial power and from prudential
reasons for refusing to exercise jurisdiction.” Reno v. Catholic Social Servs., Inc., 509 U.S. 43,
57 n.18 (1993). The doctrine thus has two components: a constitutional bar to suits where there
is no “present injury,” Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 48 (D.C. Cir.
1999), and a prudential inquiry, which turns on the fitness of the issues for judicial decision and
the hardship to the parties of withholding resolution. Abbott Labs., 387 U.S. at 149.
Here, Chevron asserts that Patton Boggs’s complaint fails on both counts: Chevron
argues that Patton Boggs has not identified a sufficiently concrete and specific injury, and that
prudential considerations dictate dismissal. Patton Boggs responds that Chevron’s November
2010 letter reserving “the right to take any action [it] deems appropriate” constituted a concrete
and immediate threat to seek Patton Boggs’s disqualification, and that resolution of its
obligations in one forum is preferable to duplicative and piecemeal litigation. Patton Boggs’s
response is unavailing.
Whether Chevron’s letter to Patton Boggs constitutes a credible threat of litigation
sufficient to satisfy the constitutional injury requirement is a close question. See Fed. Exp. Corp.
v. Air Line Pilots Ass’n, 67 F.3d 961, 963–65 (D.C. Cir. 1995) (holding that, in the context of
labor negotiations, a statement that a party would “take all appropriate action” could not be
viewed as “a direct threat to file a lawsuit in the immediate future,” but noting that “a different
situation might be presented” if the statement had been made in “a communication from one
11
legal counsel to another”). Even if the letter is sufficient to satisfy the constitutional injury
requirement, however, the letter does not support the relief that Patton Boggs requests here.
Patton Boggs seeks a declaratory judgment that “the Breaux Lott Leadership Group’s
prior non-legal work for Chevron does not provide a basis for disqualifying Patton Boggs from
representing the Ecuadorian Plaintiffs.” Compl. at 10 (prayer for relief). Despite this
declaration’s apparent lack of geographical limitation, Patton Boggs avers that the Court would
need to apply only one body of law: “it is likely that District of Columbia rules will apply
because the conduct purportedly giving rise to the conflict — [the Breaux Lott Group’s]
performance of lobbying work for Chevron — did not occur before a tribunal” and took place in
the District. Pl.’s Opp’n at 13 n.1. This, however, is incorrect.7
Under the ABA’s Model Rules of Professional Conduct — and thus, in a significant
number of jurisdictions — the rules that govern “conduct in connection with a matter pending
before a tribunal” are “the rules of the jurisdiction in which the tribunal sits.” MODEL RULES OF
PROF’L CONDUCT R. 8.5(b)(1); accord D.C. RULES OF PROF’L CONDUCT R. 8.5(b)(1); MD .
LAWYER’S RULES OF PROF’L CONDUCT R. 8.5(b)(1); N.Y. RULES OF PROF’L CONDUCT R.
8.5(b)(1); PA . RULES OF PROF’L CONDUCT R. 8.5(b)(1). Thus, the propriety of Patton Boggs’s
participation in Chevron’s various § 1782 proceedings — which is unquestionably “conduct in
connection with” those proceedings — is governed by the respective rules of the jurisdictions
7
The Court also notes that whether it was the Breaux Lott Group’s lobbying — as
opposed to Patton Boggs’s subsequent appearances in litigation against Chevron — that
“purportedly [gave] rise to the conflict” is a largely semantic question. In fact, it would probably
be most precise to say that it was the combination of the two actions that caused the putative
conflict. Regardless, the location of the lobbying activity is irrelevant to the question of which
rules govern disqualifications from pending actions.
12
where those cases are pending. See Southwire Co. v. Ramallo Bros. Printing, Inc., 2009 WL
4937726, at *15 (D.P.R. Dec. 15, 2009). Consequently, in order to determine whether “the
Breaux Lott Leadership Group’s prior non-legal work for Chevron . . . provide[s] a basis for
disqualifying Patton Boggs from representing the Ecuadorian Plaintiffs,” the Court would need to
decipher and apply the law of every jurisdiction where Chevron might seek Patton Boggs’s
disqualification — potentially every single state.
This fact is fatal to Patton Boggs’s argument that its suit is ripe. Even if Chevron’s
November 2010 letter constituted a credible threat of litigation for constitutional ripeness
purposes, that letter could only have created a justiciable controversy as to those actions that are
currently pending — it cannot be understood as a clear and immediate threat to seek Patton
Boggs’s disqualification from actions that do not yet exist. See Laird v. Tatum, 408 U.S. 1, 15
(1972) (ripeness requires an “actual present or immediately threatened injury”); cf. Lujan v. Nat’l
Wildlife Fed., 497 U.S. 871, 891–94 (1990) (explaining that administrative disputes are ripe for
judicial intervention “only when, and to the extent that, a specific ‘final agency action’ has an
actual or immediately threatened effect” (emphasis added)). Thus, as to each jurisdiction where
Patton Boggs does not currently represent the Lago Agrio plaintiffs in litigation against Chevron,
Patton Boggs is essentially asking for an advisory opinion regarding its ethical obligations under
that jurisdiction’s law — a remedy that is beyond this Court’s power to provide. See Aetna Life
Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937) (explaining that the federal judicial power does
not extend to “advising what the law would be upon a hypothetical state of facts”).8
8
Prudential ripeness concerns do not favor Patton Boggs either; given that Patton
Boggs is effectively asking the Court to conduct a fifty-state survey of its ethical obligations vis a
vis the Lago Agrio litigation, it cannot be said that “the scope of the controversy has . . .
13
Consequently, Patton Boggs’s declaratory judgment claim is, at best, only ripe as to those
jurisdictions where it is involved in one of Chevron’s § 1782 actions.
2. Abstention under the Declaratory Judgment Act
Even if some portion of Patton Boggs’s suit is ripe, the Court nevertheless exercises its
discretion under the Declaratory Judgment Act, 28 U.S.C. § 2201, to abstain from hearing this
case. “[D]istrict courts possess discretion in determining whether and when to entertain an
action under the Declaratory Judgment Act, even when the suit otherwise satisfies subject matter
jurisdictional prerequisites.” Wilton v. Seven Falls Co., 515 U.S. 277, 282 (1995). This
discretion is most often exercised when the dispute in question would be “better settled” by a
court before which parallel proceedings are pending. Cincinnati Indem. Co. v. A & K Const. Co.,
542 F.3d 623, 625 (8th Cir. 2008) (citing Brillhart v. Excess Ins. Co., 316 U.S. 491, 495 (1942));
see Envision Healthcare, Inc. v. PreferredOne Ins. Co., 604 F.3d 983, 986 (7th Cir. 2010)
(“[T]he classic example of when abstention is proper occurs where . . . solely declaratory relief is
sought and parallel state proceedings are ongoing.”); Crown Cork & Seal Co., Inc. v. United
Steelworkers, 2004 WL 117923, at *3 (W.D. Pa. June 9, 2004) (stating that these abstention
principles are “equally applicable” where the parallel case is pending in another federal court).
Here, the question of whether Patton Boggs might be subject to disqualification from any
of Chevron’s § 1782 proceedings would be “better settled” by the courts presiding over those
cases. The necessary parties (i.e., Patton Boggs and Chevron) are involved in those actions, and
the presiding courts are perfectly capable of resolving Patton Boggs’s ethical dilemma. See
manageable proportions.” Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808
(2003) (quoting Lujan, 497 U.S. at 891) (internal quotation marks omitted).
14
Brillhart, 316 U.S. at 495 (abstention analysis includes “whether the claims of all parties in
interest can satisfactorily be adjudicated in [the parallel] proceeding”). Indeed, as Chevron
points out, whether an attorney is competent to appear in a particular proceeding is properly a
question for the presiding court to resolve. See Dyntel Corp. v. Ebner, 120 F.3d 488, 491 (4th
Cir. 1997); cf. Airgas, Inc. v. Cravath, Swaine & Moore LLP, 2010 WL 624955, at *4 (E.D. Pa.
Feb. 22, 2010) (“To create an alternate forum for the subsidiary issue of considering the
disqualification of [a law firm] would be tantamount to the proverbial tail wagging the dog.”).
This is doubly true when answering that question would require an application of the presiding
court’s own ethical rules, with which it will undoubtably be more familiar. See Bishop v. Wood,
426 U.S. 341, 345–46 (1976) (noting the expertise of district court judges in the law of the
jurisdictions where they sit). For this Court to inform all other federal courts that Patton Boggs is
qualified to represent the Lago Agrio plaintiffs before those courts would be incredibly intrusive.
In fact, Patton Boggs has not identified a single case in which a court has granted relief of the
type it seeks here. Accordingly, to the extent that Patton Boggs’s suit is in fact ripe, the Court
exercises its judgment under the Declaratory Judgment Act to dismiss the case.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that Patton Boggs’s motion to strike [#12]
and motion for leave to amend [#19] must be denied and Chevron’s motion to dismiss [#5] must
be granted. An appropriate order accompanies this memorandum opinion.
Henry H. Kennedy, Jr.
United States District Judge
15