United States District Court, M.D. Florida, Tampa Division
AMBER LANCASTER, BRITTANY CRIPLIVER, BROOKE TAYLOR JOHNSON, CIELO JEAN GIBSON, CORA SKINNER, GEMMA LEE FARRELL, HEATHER RAE YOUNG, IRINA VORONINA, JESSE GOLDEN, JESSA HINTON, JOANNA KRUPA, KATARINA VAN DERHAM, MAYSA QUY, PAOLA CANAS, SANDRA VALENCIA, SARA UNDERWOOD, TIFFANY SELBY, TIFFANY TOTH, VIDA GUERRA, and KIM COZZENS, Plaintiffs,
ANDREW HARROW, SUSAN HARROW, EYES WIDE SHUT, LLC, BYOB CLUB, INC., and THE BOTTLE CLUB, LLC, Defendants.
REPORT AND RECOMMENDATION
S. SNEED UNTIED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Plaintiffs' Petition for Ex
Parte Temporary Restraining Order With Asset Freeze and
Motion to Disqualify M. Sean Moyles and Defendants'
Bankruptcy Attorney As Counsel for All Defendants
(“Motion”) (Dkt. 118), and Defendants'
response in opposition (Dkt. 137). The presiding district
court judge denied Plaintiffs' request for a temporary
restraining order and referred the motions for preliminary
injunction and to disqualify counsel to the undersigned to
conduct an evidentiary hearing and enter a report and
recommendation. (Dkt. 120.) On February 8, 2018, the Court
held an evidentiary hearing on the Motion, after which the
parties filed post-evidentiary hearing briefs. (Dkts. 151,
152). For the reasons that follow, it is recommended that the
Motion be denied.
filed the Motion as a result of a conversation between
Defendant Andrew Harrow and Plaintiffs' attorney Ludmila
Khomiak which took place after Mr. Harrow's January 4,
2018 deposition. Ms. Khomiak avers that, after Mr.
Harrow's deposition concluded, Mr. Harrow “informed
[her] in the presence of his attorney, M. Sean Moyles, Esq.,
and the court reporter, Yvonne Corrigan, that he has retained
a bankruptcy attorney for the purpose of bankrupting all the
Defendants and making sure that the Plaintiffs ‘do not
receive any money out of this lawsuit.'” (Dkt.
118-1.) She also avers that Mr. Harrow informed her
“that he [h]as already moved all assets out of the
Defendants' bank accounts and hid them and the reason why
he believes the Plaintiffs would not be able to ‘go
after' him, his wife or the remainder of the Defendants
is because he has done this before in another matter where a
judgment was entered against one of his companies and he was
able to successfully hide the assets and file for
bankruptcy.” (Id.) Finally, she avers that Mr.
Harrow stated that his bankruptcy attorney would attend the
(now-canceled) January 19, 2018 mediation (Dkts. 123, 123),
to make sure that Plaintiffs “‘do not get
on Mr. Harrow's statements, Plaintiffs argue that Mr.
Moyles and Defendants' (unnamed) bankruptcy attorney must
be disqualified as Defendants' counsel because
“they are witnesses in this matter and may also have
direct knowledge of the fraudulent transfer of assets.”
(Dkt. 118 at 3.) Plaintiffs also seek an order freezing
Defendants' assets, and assets of any affiliated
companies, to prevent further transfers until it can be
determined whether assets were transferred and, if so, where
they were transferred. (Id.)
response to the Motion, Mr. Moyles avers that he witnessed
the conversation and heard Mr. Harrow tell Ms. Khomiak that
he was considering filing for bankruptcy and had met with
bankruptcy counsel. Mr. Moyles further avers, however, that
he did not hear Mr. Harrow make any of the other comments
Plaintiffs' counsel attributes to him, including that Mr.
Harrow had moved or hidden Defendants' assets. (Dkt.
136-1 ¶¶ 3, 5.) Accordingly, Defendants contend
that there is no factual basis for Plaintiffs' request to
freeze Defendants' assets and disqualify their counsel.
(Dkt. 137 at 3.)
evidentiary hearing, Ms. Khomiak's testimony was
consistent with her declaration. She testified that after Mr.
Harrow's deposition, in the presence of Mr. Moyles and
the court reporter, Mr. Harrow told her that he was not
making a threat, but that he had contacted a bankruptcy
attorney who will be present at the parties' mediation
instead of Mr. Moyles. (Dkt. 149 at 10:1-11:2.) He told her
that he had “already moved all of my money, all of my
assets, out of the defendants' in this case bank
accounts, ” which he had done before in other,
unrelated lawsuits. (Id. at 11:3-11, 14:1-3.) She
testified that she was shocked because Mr. Harrow's
“whole intent [was] to make sure that my plaintiffs do
not get any money out of this.” (Id. at
11:20-12:1, 14:4-9, 18:4-6.) She testified that, other than
Mr. Harrow's statements, Plaintiffs have no other
evidence of Defendants' transferring their assets.
(Id. at 14:10-14, 17:20-18:1, 21:9-19, 28:18-29:4.)
cross examination, when asked if she had any reason to
believe that Mr. Harrow was using Mr. Moyles's services
in commission of these alleged transfers, Ms. Khomiak
answered that her basis was Mr. Moyles's being present
during this conversation and not interjecting. (Id.
at 19:3-20:5.) She further testified that she had no reason
to believe Mr. Harrow had used Mr. Moyles's services to
transfer Defendants' assets. (Id. at 20:6-11.)
As for the unnamed bankruptcy attorney, Ms. Khomiak testified
that she had no evidence that Mr. Harrow had used or was
using this attorney's services to transfer
Defendants' assets other than the statements Mr. Harrow
made to her. (Id. at 20:12-21:19.)
Corrigan testified that she recalled Mr. Harrow telling Ms.
Khomiak that he was going to file for bankruptcy but does not
recall any other statements. (Id. at 39:10-25.) Mr.
Harrow testified that he told Ms. Khomiak that he had visited
bankruptcy attorneys “to hopefully end the
litigation” and that Plaintiffs would not get
“that much, or any money” at the end of the
litigation. (Id. at 48:10-49:5.) He testified that
he meant that the bankruptcy court would “take
over” and “handle” the case and denied that
he meant that Plaintiffs would not receive a settlement.
(Id. at 67:21-68:11.) Finally, he testified that no
Defendant moved or hid assets or intends to file for
bankruptcy. (Id. at 57:18-20, 59:2-12, 60:14-21,
Disqualification of Defendants' Counsel
movants, Plaintiffs bear the burden to prove grounds for
Defendants' counsel's disqualification. In re
BellSouth Corp., 334 F.3d 941, 961 (11th Cir. 2003).
“Because a party is presumptively entitled to the
counsel of his choice, that right may be overridden only if
compelling reasons exist.” Id.; see
Alexander v. Tandem Staffing Sols., Inc., 881 So.2d 607,
608-09 (Fla. 4th DCA 2004) (“Motions for
disqualification are generally viewed with skepticism because
disqualification of counsel impinges on a party's right
to employ a lawyer of choice, and such motions are often
interposed for tactical purposes.”). Courts limit
disqualification to instances where the attorney's
conduct violates specific Rules of Professional Conduct,
unless the conduct at issue threatens “the orderly
administration of justice” or deliberately challenges
the court's authority, in which cases courts are given
wide latitude in disqualification determinations.
Schlumberger Techs., Inc. v. Wiley, 113 F.3d 1553,
1561 (11th Cir. 1997); see Kleiner v. First Nat. Bank of
Atlanta, 751 F.2d 1193, 1210 (11th Cir. 1985)
(disqualifying an attorney who deliberately disobeyed the
court's protective order where the attorney's client
contacted potential class members in “attempts to
manipulate the decision of class members to join or opt out
of class membership”).