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McNeal v. Glazman

United States District Court, D. Delaware

August 29, 2018

ERIN MCNEAL, Plaintiff,
v.
PETER GLAZMAN et al., Defendants.

          Superior Court of the State of Delaware in and for New Castle County No. N17C-08-303 FWW

          Erin McNeal, Wilmington, Delaware. Pro Se Plaintiff.

          Eric Michael Sutty, Esquire, and Jonathan M. Stemerman, Esquire, Elliott Greenleaf, Wilmington, Delaware. Counsel for Defendants.

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE.

         Plaintiff Erin McNeal, who appears pro se, filed this action in the Superior Court of the State of Delaware in and for New Castle County. It was removed to this Court on October 6, 2017, by Defendants Peter Glazman and U.S. Pack Logistics. (D.I. 1). The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. Pending is Plaintiff's motion for removal of Defendants' attorney (D.I. 16), Defendants' motion to compel arbitration and dismiss (D.I. 35), Defendants' motion to strike sur-reply, or alternatively, for permission to file a response to Plaintiff's sur-reply (D.I. 35), and Plaintiffs motion to remain in district court, not to participate in arbitration, and to dismiss certain defense counsel (D.I. 45). The matters have been fully briefed.

         FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff brings this action against Defendants Peter Glazman and U.S. Pack Logistics.[1] The Complaint provides New York addresses for both Defendants and seeks more than seven million dollars in damages. (D.I. 1-1 at p.3). Plaintiff seeks recovery relating to "Debt/Breach of Contract[, ] . . . Age and Sex Discrimination, APEA [sic], Title VII, Civil Rights, Equal Rights Pay, Equal Pay Act, Equal Rights Amendment ERA, Comparable Worth, Breach of Covenant, Implied Promises, Breach of Good Faith and Fair Dealing, Retaliation, Whistle Blowing, Wrongful Termination, Theft by Deception, Back Pay, Withholding of Pay, Front Pay, Defamation, Fraud, Employee/Contractor Law with IRS and DOL, Compensatory Damages, Work Injury, Financial Loss, Emotional [and] Mental Stress." (Id.). Defendants removed the case pursuant to 28 U.S.C. § 1331 (federal question jurisdiction), and note that the Court has supplemental jurisdiction over Plaintiff's state law claims. (D.I. 1 at p.2).

         On November 5, 2013, Plaintiff "was supposedly hired as an independent contractor for Ark Logistics under U.S. Pack Logistics ... to pick up parcels, sort and load them into the van, at the DHL warehouse in Elkridge, MD, and deliver the parcels to the post offices in the Philadelphia Region." (D.I. 1-1 at p.6). Plaintiff alleges that she, Glazman, and U.S. Pack entered into a five-year contract/agreement. (Id.). In December 2013, Plaintiff spoke with Glazman about issues with Ark Logistics' performance. (Id.). On February 24, 2014, Plaintiff was recognized for her skills and hard work. (Id.). In March 2014, Plaintiff was given two more routes, but her pay was reduced. (Id. at p.7). In addition, she was not treated equally or fairly, and she did not receive monies owed her. (Id.)

         In July 2014, DHL leaders/owners came from another country to examine the operations in Elkridge, Maryland, and questioned Plaintiff "on how everything runs." (Id. at p.8). Plaintiff alleges that Glazman was angry because he did not like her "speaking the truth." (Id.). On August 25, 2014, Glazman sent two of his employees to take Plaintiff's ID, keys, van, routes, bank cards, scanners, bungees, and EZ Pass transponders. (Id.). Plaintiff alleges that "out of nowhere, [she] was wrongfully terminated. No. warning. No. reason." (Id. at p.7). Plaintiff alleges that U.S. Pack Logistics breached the contract and wrongfully terminated her without cause. (Id. at p.8).

         Plaintiff spoke to Glazman several times seeking her pay. (Id.). She alleges that he refused to pay her and then "bad mouthed" her to Ark Logistics not to hire her and stay away from her because she was bad news. (Id.). Plaintiff last spoke to Glazman in early September 2014. (D.I. 1-1 at p.4).

         Plaintiff commenced this action on August 24, 2017 in Superior Court and Defendants removed it to this Court on October 6, 2017. Following the case's removal, Plaintiff filed a motion for removal of Defendants' attorneys. (D.I. 16). On November 13, 2017, Defendants filed a motion to compel arbitration and dismiss the case.

         MOTION FOR REMOVAL OF DEFENDANTS' ATTORNEYS

         Plaintiff moves for removal of defense counsel Peter P. Perla, Erin L. Henderson, and Pete Fidopiastis on conflict of interest grounds. (D.I. 16). She also makes a request for Defendants to choose only one of their attorneys, either Eric M. Sutty or Jonathan M. Stemerman, to represent them. (Id.). Plaintiff contends that Perla and Henderson must be removed as attorneys due to their previous representation of Defendants. (D.I. 24 at ¶¶ 7-9). (D.I. 18). Defendants oppose on the grounds that there are no grounds for their removal.

         Plaintiff relies upon ABA Model Rule 1.9 to support her position.[2] It provides, as follows:

Rule 1.9 - Duties to Former Clients
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a 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.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the ...

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