govinfo:USCOURTS-casd-3_22-cv-00892-2

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
PACIFIC STEEL GROUP, 
Plaintiff, 
v. 
CMC STEEL FABRICATORS, INC, dba 
CMC REBAR et al., 
Defendants. 

 
ORDER DENYING PLAINTIFF’S 
MOTION TO DISQUALIFY 
 
[ECF No. 228] 
 
 Pending before the Court is Plaintiff’s motion to disqualify Defendants’ counsel 
Kenneth M. Fitzgerald and Brooke L. Raunig. (ECF No. 228, amended at ECF No. 265.) 
Defendants filed an opposition (ECF no. 233), and Plaintiff filed a reply (ECF no. 247, 
amended at ECF no. 266). The matter is appropriate for decision without oral argument. 
See Civ. L. R. 7.1(d)(1). For the reasons stated below, the motion is denied. 
I. BACKGROUND 
 Plaintiff Pacific Steel Group (“Plaintiff”) and Defendants CMC Steel Fabricators, 
Inc., CMC Rebar West, and CMC Steel US LLC (collectively “Defendants” or “CMC 
Rebar”) compete in the steel rebar furnishing and installation (“F&I”) market in 
California. Plaintiff claims that Defendants sold F&I services below cost and as loss 
leaders with the purpose of injuring competitors or destroying competition. 
/ / / / / 
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 Plaintiff filed this action in State court alleging violations of California Business 
and Professions Code Sections 17043, 17044, and 17200. When Defendants removed it 
to this court, District Judge M. James Lorenz and Magistrate Judge Daniel E. 
Butcher were assigned. (ECF No. 1.) 
 Both parties have been represented by large national firms in this litigation. Until 
recently, Defendants were represented by attorneys at Dechert LLP, Morrison & Foerster 
LLP (“Morrison”), and Wilson Sonsini Goodrich & Rosati PC (“Wilson Sonsini”). 
Initially, to comply with local rules, Defendants engaged as local counsel Bonnie Lau, 
partner at the Morrison San Francisco office, and Alexandra Preece Barlow from 
Morrison’s San Diego office. (ECF No. 233-3 (“Bizar Decl.”) ¶ 3.) 
 In April 2025, Ms. Lau transferred from Morrison to Wilson Sonsini’s San 
Francisco office. (ECF No. 162.) At this point in the litigation, discovery was closed 
(see ECF no. 167 at 7) and Defendants’ summary judgment motion was pending (ECF 
no. 83). (Bizar Decl. ¶ 4.) Defendants started considering a trial counsel with 
meaningful local jury experience who could actively participate in trying the case. (Id. ¶¶ 
4, 6; see also ECF No. 233-2 (“Prince Decl.”) ¶¶ 4-5.) Although Ms. Barlow remained as 
Defendants’ local San Diego counsel, she was not considered in this role because she was 
a “relatively young partner.” (Bizar Decl. ¶ 3.) Defendants considered the Wilson 
Sonsini San Diego office, and determined it lacked a suitable trial counsel. (Id. ¶ 5.) 
They concluded that no defense firms had any significant experience with jury trials in 
San Diego. (Id.) Ultimately, Defendants identified and interviewed Mr. Fitzgerald of the 
San Diego-based law firm Fitzgerald Knaier LLP (“Fitzgerald”). (Prince Decl. ¶¶ 5-7; 
Bizar Decl. ¶¶ 6-7; see also ECF No. 233-4 (“Fitzgerald Decl.”) ¶¶ 4-12.) Defendants 
retained him on May 15, 2025, to consult on trial strategy and help try the case based on 
his local jury trial experience, knowledge of local juries, and his firm’s competitive 
billing rates. (Prince Decl. ¶¶ 6-7; Bizar Decl. ¶ 7; see also Fitzgerald Decl. ¶¶ 4-12, 16.) 
Mr. Fitzgerald brought with him Ms. Raunig as an associate attorney. (Fitzgerald Decl. ¶ 
15.) 
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 Mr. Fitzgerald and Ms. Raunig did not immediately enter appearances, as they had 
been retained for purposes of trial. (Fitzgerald Decl. ¶ 16.) They waited for Judge 
Butcher to rule on all motions that were then pending before him and entered appearances 
on August 26, 2025. (Id.; see also ECF Nos. 219, 220.) Judge Butcher recused himself 
from the case the next day. (ECF No. 221.) Mr. Fitzgerald anticipated this as he 
describes himself as a “close personal friend” of Judge Butcher’s. (Fitzgerald Decl. ¶¶ 
14, 16.) Simultaneously with Judge Butcher’s recusal, the case was randomly reassigned 
to Magistrate Judge Jill L. Burkhardt (ECF no. 221) according to this District’s local 
rules. See Civ. L. R. 40.1. 
Plaintiff moves to disqualify the Fitzgerald attorneys from representing Defendants 
and requests to reassign Judge Butcher to this case. For the reasons stated below, the 
motion is denied. 
II. DISCUSSION 
 Federal courts in California apply California law to motions for disqualification of 
counsel. Radcliffe v. Hernandez, 818 F.3d 537, 541, 543 (9th Cir. 2016); see also 
Wininger v. SI Mgt L.P., 301 F.3d 1115, 1122 (9th Cir. 2002); In re Cnty of Los Angeles, 
223 F.3d 990, 995 (9th Cir. 2000) (“we apply state law in determining matters of 
disqualification”).1 
Ultimately, disqualification motions involve a conflict between the clients' 
right to counsel of their choice and the need to maintain ethical standards of 
professional responsibility. [H]owever, the paramount concern must be to 
preserve public trust in the scrupulous administration of justice and the 
integrity of the bar. 
 
City and Cnty of San Francisco v. Cobra Solutions, Inc., 38 Cal.4th 839, 846 (2006). 
 “The important right to counsel of one’s choice must yield to ethical considerations that 
affect the fundamental principles of our judicial process.” People ex rel. Dep’t of 
 
1 Unless otherwise noted, internal quotation marks, citations, footnotes, ellipses, and 
brackets are omitted from citations. 
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Corporations v. SpeeDee Oil Change Sys., Inc., 20 Cal.4th 1135, 1145 (1999) 
(“SpeeDee”). 
 In determining whether an ethical violation occurred, state and federal courts in 
California look to the State Bar of California Rules of Professional Conduct (“Prof. 
Conduct Rules”),2 American Bar Association Model Rules of Professional Conduct 
(“Model Rules”), local rules of the court, and relevant case law. See, e.g., Walker v. 
Apple, Inc., 4 Cal. App. 5th 1098, 1106-1115 (2016); Radcliffe, 818 F.3d at 541-47; Prof. 
Conduct Rule 1.0(b)(2) & comm. 4. 
 “A motion to disqualify a law firm can be a powerful litigation tactic to deny an 
opposing party’s counsel of choice.” In re Cnty of Los Angeles, 223 F.3d at 996. For 
example, “motions to disqualify are often used as a tactical device delay litigation.” State 
Farm Mut. Auto Ins. Co. v. Fed. Ins. Co., 72 Cal. App. 4th 1422, 1433 (1999). Clients 
“bear the financial burden when their chosen counsel is disqualified – a burden that an 
opponent may desire in order to gain a tactical advantage in the litigation.” City and Cnty 
of San Francisco, 38 Cal.4th at 851. “Because of this potential for abuse, disqualification 
motions should be subjected to particularly strict judicial scrutiny.” Shurance v. 
Planning Control Int’l., Inc., 839 F.2d 1347, 1349 (9th Cir. 1988). 
 Plaintiff argues for disqualification because Judge Butcher’s recusal would 
“squander” years of effort he expended on the discovery and settlement matters in this 
case and because the association of Fitzgerald attorneys “threatens the appearance of 
impropriety.” (ECF No. 265, Pl.’s Mot. to Disqualify at 2.) Suggesting that Mr. 
Fitzgerald’s retention was motivated by Defendants’ desire to have the case transferred 
because Judge Butcher had previously ruled in Plaintiff’s favor, Plaintiff points out that 
Defendants could have selected other qualified San Diego trial counsel who would not 
have triggered recusal. Plaintiff does not deny that no motions were pending before 
 
2 See Prof. Conduct Rule 8.5. 
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Judge Butcher when the Fitzgerald counsel entered their appearances. Finally, Plaintiff 
contends that Judge Butcher’s recusal will cause delay because the newly assigned 
magistrate judge is not familiar with the case. 
 Plaintiff’s contentions implicate defense counsel’s ethical duties toward their 
adversary and the court. Specifically, a lawyer shall not “use means that have no 
substantial purpose other than to delay or prolong the proceeding or to cause needless 
expense,” Prof. Conduct Rule 3.2; “engage in conduct intended to disrupt a tribunal,” 
Model Rule 3.5(d); or “engage in conduct that is prejudicial to the administration of 
justice,” id. Rule 8.4(d). These principles are echoed in the Local Rules of this District. 
See Civ. Loc. R. 2.1(a)(1) & (2)(h). 
 When the Fitzgerald counsel entered their appearances, discovery was closed, and 
all requests for limited further discovery had been ruled upon by Judge Butcher or agreed 
by the parties. (See ECF Nos. 167, 187, 209.) No motions were pending and no further 
hearings were set before Judge Butcher. Plaintiff’s contention that its intention to file 
further discovery motions counsels for disqualification is rejected. 
 Plaintiff planned to file a motion for sanctions arguing spoliation of evidence and a 
motion to strike untimely expert disclosures. Those motions were not on file when the 
Fitzgerald attorneys entered appearances. The motion to strike has not been filed to date. 
The motion for sanctions, filed more than a month after the Fitzgerald appearance (see 
ECF no. 257), was filed to this Court rather than the magistrate court. Based on the state 
of magistrate court proceedings when the Fitzgerald counsel made their appearances, 
Plaintiff’s contention that the defense counsel violated their professional duties by 
interfering with or manipulating the magistrate proceedings is rejected. Plaintiff has not 
shown that defense counsel engaged in actions damaging to the public trust in 
administration of justice. See Model Rules 3.5(d), 8.4(d). 
 To the extent Plaintiff claims that the Fitzgerald counsel appearance will cause 
undue delay, the claim is rejected for similar reasons. Plaintiff has not shown that the 
Fitzgerald appearance was made for the purpose of delay. See Prof. Conduct Rule 3.2. 
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Instead, Plaintiff argues that it will be a waste of judicial resources if a new magistrate 
judge must familiarize herself with the case to rule on Plaintiff’s planned discovery 
motions. 
 It is not uncommon for cases to be transferred between judges for a variety of 
reasons. See, e.g., 28 U.S.C. §455; Civ. Loc. R. 40.1(c), (j). This case has the advantage 
of being at the end of magistrate judge proceedings and having a well-documented 
history, including Judge Butcher’s and this Court’s detailed discovery rulings (ECF nos. 
167, 242), transcripts of discovery hearings (ECF nos. 157, 192, 207), and status reports 
(ECF nos. 173, 174, 193, 202, 208). Plaintiff’s contention of delay is unpersuasive for 
the additional reasons that Plaintiff’s motion for sanctions is based on a deposition which 
Judge Butcher had no occasion to review. (See ECF no. 257.) Plaintiff’s motion to strike 
based on untimely disclosure is yet to be filed. Such motions are common, typically not 
complex, and it is difficult to imagine why Plaintiff’s planned motion should require 
great familiarity with the case. Plaintiff’s prior motion to strike based on untimely 
disclosure was filed to this Court, which had no prior familiarity with discovery 
proceedings in this case. (See ECF No. 107.) 
 Based on the foregoing, Plaintiff has not shown that defendants violated ethical 
standards. Even if the Court were to assume that the Fitzgerald attorneys’ appearance 
amounted to a violation, disqualification would not be automatic. Only cases of 
concurrent representation of clients with adverse interests warrant automatic 
disqualification. Radcliffe, 818 F.3d at 541, 543, 547. Aside from this exception, the 
courts use a “balancing-of-interests test” which weighs “the combined effects of a party's 
right to counsel of choice, an attorney's interest in representing a client, the financial 
burden on a client of replacing disqualified counsel and any tactical abuse underlying a 
disqualification proceeding,” id. at 543, 546-47, against the “paramount concern of 
preserv[ing] public trust in the scrupulous administration of justice and the integrity of 
the bar.” City and Cnty of San Francisco, 38 Cal.4th at 846. 
/ / / / / 
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 Plaintiff has not shown that by introducing the Fitzgerald attorneys, defense 
counsel violated ethical duties that would “affect the fundamental principles of our 
judicial process.” SpeeDee, 20 Cal. 4th at 1145. Accordingly, the balance of factors, 
including parties’ “strong interest in representation by counsel of their choosing,” In re 
Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 658 F. 2d 1355, 
1358 (9th Cir. 1981), weigh against disqualification. 
 Plaintiff’s reliance on UCP Int’l Co. Ltd. v. Balsam Brands Inc., 261 F. Supp. 3d 
1056 (N.D. Cal. 2017) (“UCP”), is unavailing.3 UCP was a patent case, where the 
district judge had issued detailed temporary restraining order and claim construction 
rulings. Based thereon, he suggested the parties file a summary judgment motion. 
However, just after the summary judgment motion was filed, the less successful party 
entered appearance of new counsel which prompted the district judge to recuse himself. 
The case was transferred to a new district judge, who was to rule on summary judgment 
without the benefit of familiarity with the case. Moreover, the reassignment threatened to 
unravel the claim construction rulings which formed the basis of the summary judgment 
motion. The party who triggered recusal apparently did not wish to argue against 
summary judgment before the prior judge, whose rulings would inform his summary 
judgment order. 
 By contrast, Plaintiff’s motion for sanctions here is based on a deposition Judge 
Butcher had not considered. It also appears that any yet-to-be-filed motion to strike 
would be based on facts which were not considered by Judge Butcher. Furthermore, 
unlike here, in UCP the recusal interrupted district court proceedings amid complex 
motion practice. Here, no motions were pending before Judge Butcher when the 
/ / / / / 
 
3 “A decision of a federal district court judge is not binding precedent in either a 
different judicial district, the same judicial district, or even upon the same judge in a 
different case.” Camreta v. Green, 563 U.S. 692, 709 n.7 (2011). 
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Fitzgerald counsel made their appearance, and Plaintiff’s planned motions are not 
dispositive. Accordingly, UCP’s holding in favor of disqualification is not persuasive. 
III. CONCLUSION 
For the reasons stated above, Plaintiff’s motion is DENIED. 
 
IT IS SO ORDERED. 
 
Dated: November 10, 2025 
 
 
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