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Lu v. Baker

United States District Court, D. Massachusetts

March 9, 2016

FRIEDRICH LU, Plaintiff,
v.
CHARLES D. BAKER, JR., et al., Defendants.

MEMORANDUM AND ORDER

PATTI B. SARIS CHIEF UNITED STATES DISTRICT JUDGE

For the reasons set forth below, the Court will deny Lu’s motions to compel, to strike and disqualify counsel (Docket Nos. 14, 25-26, 28); and will grant the pending motions to dismiss (Docket Nos. 18, 23).

INTRODUCTION

On March 2, 2015, pro se plaintiff Friedrich Lu (“Lu”), who is homeless, filed his one-page complaint pursuant to 42 U.S.C. § 1983 (civil action for deprivation of rights) against the Governor of Massachusetts and Lauren M. Mitchell and Michael O’Connor, two notaries public/court reporters, complaining that the notaries refused to swear in plaintiff at the beginning of depositions scheduled on January 16, 2013 and December 22, 2014. See Complaint (“Compl.”), Docket No. 1.

One month later, on April 3, 2015, Lu filed a two-page amended complaint adding as defendants the companies that employed the notaries public. Mitchell’s employer Jones & Fuller Reporting and its owner Stephen D. Fuller were named as defendants along with O’Connor’s employer G&M Court Reporters and its owner Mary Piccirilli. See Amended Complaint (“Am. Compl.”), Docket No. 12.

Lu alleges that the court reporter defendants “cast their lot with attorney general Maura Healey, in a joint venture to obstruct justice, in part by filing a series of papers in the instant action.” Id. at ¶ 5. Lu further alleges that Governor Baker violated 42 U.S.C. § 1983 by depriving Lu’s rights that are “secured by Supremacy Clause of and Fourteenth Amendment (due process and equal protection clauses) to the federal constitution.” Id. at ¶ 6.

Lu contends that he was unable to provide adequate identification at the depositions because “deputy sheriffs and police officers unconstitutionally took away all Lu’s worldly belongings, including ID cards [in 1999].” Id. at ¶ 4. Through this action, Lu seeks to invalidate the standards of conduct for notaries public in Massachusetts pursuant to an executive order of then-Governor Mitt Romney in 2004 (Revised Executive Order No. 455 (04-04)).

Lu filed a request to default defendants Mitchell and O’Connor explaining that, as of May 27, 2015, neither Mitchell nor O’Connor answered or otherwise defended. See Docket No. 20. On May 1, 2015 defendant Baker filed a motion to dismiss the amended complaint, and on July 30, 2015, defendant O’Connor filed an answer to the original complaint. See Docket Nos. 18, 22.

On August 3, 2015, Defendants Mitchell, Fuller and Jones & Fuller Reporting filed a motion to dismiss the original complaint. See Docket No. 23. Lu has filed motions (1) to compel Governor to take a stand on Executive Orders; (2) to disqualify counsel; and (3) to strike Mitchell and Fuller’s motion to dismiss. See Docket Nos. 14, 25, 28.

Additionally, Lu filed oppositions to the motions to dismiss of Baker and Mitchell, Fuller and Jones & Fuller Reporting. See Docket Nos. 19, 27.

LU’S MOTION TO DISQUALIFY

As an initial matter, Lu seeks to disqualify counsel for defendants Mitchell, Fuller and Jones & Fuller Reporting. Lu complains that at the deposition in question, this attorney had been counsel for a defendant in the lawsuit where defendant Mitchell is alleged to have refused to swear in Lu.

A party may seek the disqualification of an adversary's counsel. See Lu v. Hulme, No. CA 12-11117-MLW, 2013 WL 1331028, at *3 (D. Mass. Mar. 30, 2013). However, such disqualification is a “drastic measure.” Id. (citing Adoption of Erica, 426 Mass. 55, 58, 686 N.E.2d 967 (1997)). It should only be granted as “a measure of last resort” when necessary to assure “the ethical and orderly administration of justice.” Id. (citing In re Grand Jury Proceedings, 859 F.2d 1021, 1026 (1st Cir. 1988)).

Here, Lu contends that counsel is a witness to the events in question. However, Lu has failed to raise a significant concern that counsel would be required to testify in this action, and because there is no other source of a potential conflict, the ...


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