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Government of India and Food Corp. v. Cook Industries Inc.

decided: January 13, 1978.

THE GOVERNMENT OF INDIA AND THE FOOD CORPORATION OF INDIA, PLAINTIFFS-APPELLANTS,
v.
COOK INDUSTRIES, INC. AND COOK AND COMPANY, DEFENDANTS-APPELLEES



Appeal from an order entered in the Southern District of New York, Robert J. Ward, District Judge, 422 F. Supp. 1057, which disqualified an attorney and the law firm with which he is presently associated from representing plaintiffs in the instant action on the ground that the attorney, while associated with another law firm, previously had represented defendants in a similar action. Affirmed.

Mansfield and Timbers, Circuit Judges, and Dooling, District Judge.*fn* Mansfield, Circuit Judge, concurring.

Author: Timbers

TIMBERS, Circuit Judge:

On this appeal from an order entered in the Southern District of New York, Robert J. Ward, District Judge, 422 F. Supp. 1057, the question presented is whether the district court correctly disqualified attorney Frederick W. Meeker and the law firm with which he presently is associated, Delson & Gordon, from representing in the instant action plaintiffs The Government of India and The Food Corporation of India (collectively, "India") on the ground that Meeker, while associated with the law firm of Hill, Rivkins, Carey, Loesberg and O'Brien ("Hill, Rivkins"), in a similar action previously had represented defendants Cook Industries, Inc. and Cook and Company (collectively, "Cook"). We hold that the district court correctly disqualified the attorney and his law firm. We affirm.

I.

In view of the district court's adequate findings of fact which we accept, Fed. R. Civ. P. 52(a), we summarize here only those facts necessary to an understanding of our rulings below on the legal issues presented.

Shortly before Meeker's graduation from law school in June 1972, he became associated with Hill, Rivkins. In 1973 he was assigned to represent Cook in two closely related actions which were commenced in 1973 against Cook in the Southern District of New York (the "Soybean Actions").

In the Soybean Actions plaintiffs alleged that Cook had sent them a shipment of soybeans from Louisiana which, upon arrival at its destination in Taiwan, was found to be 254 tons short of the amount stated on the bills of lading and weight certificates. Plaintiffs, alleging that either Cook or the carrier had failed to perform its contractual obligations, commenced separate actions against each. In the action against the carrier, the latter impleaded Cook, alleging that if there was a shortage it was due to Cook. The two actions were consolidated. On February 20, 1976, Judge Stewart dismissed both of the Soybean Actions.

On April 5, 1976, Meeker, having left Hill, Rivkins, became associated with Delson & Gordon. Within a month he was assigned to represent the India plaintiffs against the Cook defendants in the instant action which was commenced May 3, 1976.

Upon the refusal of Delson & Gordon and Meeker to withdraw as counsel for plaintiffs in the present action at the request of Cook's counsel, Fried, Frank, Harris, Shriver & Jacobson, the motion to disqualify was filed. From the order of November 19, 1976 granting that motion, the instant appeal has been taken.

II.

In the context of this sequence of events, we focus upon those facts which bear upon the relationship between the issues in the respective cases and Meeker's involvement therein.

In the Soybean Actions, the validity of the critical documents had been challenged in the carrier's third-party complaint. They also were contested by plaintiffs and the carrier in opposing Cook's motion for summary judgment. In an affidavit by counsel for the carrier in opposition to that motion it had been asserted that "any fraud which may have been present originated with Cook or its agents." This was in response to Meeker's affidavit in support of Cook's motion for summary judgment which alleged that any shortage had been caused by the carrier's fraudulent bills of lading.

During the three years of Meeker's association with Hill, Rivkins, the firm billed Cook for more than one hundred hours of Meeker's services. Among other services, Meeker prepared answers to the complaints against Cook, a motion for a stay pending arbitration, a request for admissions, a motion for summary judgment and various memoranda in support of these motions. He also interviewed a witness with regard to the weight certificates, and attended several pretrial ...


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