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Date: 02-03-2023

Case Style:

Kimberly A. Edelstein v. Greg Stephens, et al.

Case Number: 1:17-cv-00305

Judge: Michael Barrett

Court: United States District Court for the Southern District of Ohio (Hamilton County)

Plaintiff's Attorney: Kimberly A. Edelstein

Defendant's Attorney: Linda L. Weber, Anthony P. McNamara, Cooper D. Bowen, Geroge Demetrois Jonson, Lisa Marie Zaring

Description: Cincinnati, Ohio civil rights lawyer represented her self and suited Defendant on a job discrimination (religion) theory under 42 U.S.C. 2000e.

Southern District of Ohio - Cincinnati

Southern District of Ohio - Cincinnati

MoreLaw Legal News For Cincinnati

"Kimberly Edelstein worked as a magistrate for Butler County Court of Common Pleas Judge Greg Stephens for a few months in 2016, until she asked to use eight days of vacation time to celebrate the Jewish holidays. He fired her a few days later."

According to Magistrate Judge Karen L. Litkovitz:

Plaintiff Kimberly Edelstein brings this action alleging violations of her rights under federal and state law by defendants Judge Greg Stephens, Butler County, Ohio, Michael Gmoser and Dan Ferguson. This matter is before the Court on plaintiff's second motion to disqualify counsel Linda Woeber and her law firm, Montgomery, Rennie & Jonson, LPA, from representing a defendant in this lawsuit (Doc. 109), defendants' response in opposition (Doc. 119), and plaintiff's reply in support of the motion (Doc. 120). Plaintiff has requested oral argument on the motion. (Doc. 120). The legal and factual issues raised by plaintiff's second motion to disqualify are not complex, they have been fully briefed by the parties, and the Court has previously addressed the issues raised by the motion. Pursuant to S.D. Ohio Civ. R. 7.1, the Court therefore finds that oral argument is not "essential to the fair resolution" of this case and plaintiff's request for same is denied.

Plaintiff initially sought to disqualify Woeber and her law firm from representing defendant Judge Stephens in this lawsuit based on an alleged conflict of interest. (Doc. 60). Plaintiff stated that she intended to call Woeber as a witness in this case to support Count XV - "Defamation by Defendant Stephens, Slander" - ¶¶ 247, 253, 255 of the amended complaint. In

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Count XV, plaintiff alleged that Stephens made false and defamatory statements to his attorney, Woeber, and others prior to the litigation which constitute defamation per se. (Doc. 20, ¶ 247). Plaintiff claimed that Stephens told Woeber in August and September 2016 that plaintiff "had a temper and caused disturbances at work, [and] that Plaintiff procrastinated, missed deadlines, and was a poor employee. . . ." (Id.). Plaintiff alleged in her motion to disqualify that Woeber either became aware at some point that certain representations Stephens made about plaintiff's work performance were false and she nonetheless continued to "promote" the false statements as the reason plaintiff was terminated, or Woeber did not exercise due diligence to determine whether the statements were false. (Doc. 60; Id., citing Exh. A, September 1, 2016 letter to plaintiff's then counsel; Doc. 79 at 13). Plaintiff argued that she would be substantially prejudiced if she was not permitted to call Woeber to testify as a witness about allegedly false statements concerning plaintiff's employment and termination made in the September 2016 letter. (Doc. 60).

The undersigned denied plaintiff's motion by Order dated October 5, 2018. (Doc. 79). The Court found that the requirements for disqualifying Woeber under Ohio Prof. Conduct Rule 3.7, which is intended to prevent the trial jury from learning about an attorney's dual role as an advocate and a witness, were not met. First, plaintiff had not shown that Woeber had personal knowledge of the facts underlying her client's position. (Doc. 79 at 17-18). Second, plaintiff had not shown that the testimony plaintiff sought to elicit from Woeber was material or could not be provided by another witness. (Id. at 18). Finally, even if Woeber's knowledge of the truth of the allegations in the September 2016 letter was relevant, plaintiff had made conflicting arguments as to the extent of Woeber's knowledge of the facts based on speculation and unsupported inferences based on inferences. (Id. at 19-21). The Court declined to engage in

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fact-finding and make credibility assessments in connection with the motion to disqualify. The Court concluded that Woeber was not a necessary witness as to plaintiff's work performance or the circumstances surrounding her termination. (Id. at 21).

Plaintiff filed objections to the Order on October 18, 2018 (Doc. 89) and a supplemental memorandum in support of her objections on December 17, 2018 (Doc. 108). In her supplemental memorandum, plaintiff alleged that additional evidence had been revealed during discovery that might affect the district judge's consideration of the undersigned's October 5, 2018 Order denying plaintiff's first motion to disqualify. (Doc. 108 at 1). Plaintiff alleged that it was revealed during discovery that "Ms. Woeber had misrepresented the statements of her other client, Michael Gmoser, to this Court in a Motion to Dismiss" and subsequent filings, thus violating Ohio Prof. Conduct Rule 3.3. (Doc. 108 at 2). The misrepresentation plaintiff alleges Woeber made was that "Gmoser's statements were his opinion of Edelstein and were protected under Ohio law." (Id., emphasis in original). Plaintiff argued this was a misrepresentation because in his admissions and answers to interrogatories, Gmoser stated that "his statements were not his opinion, but the opinion of another Defendant, Dan Ferguson, that [Gmoser] was relaying to a potential employer." (Id., emphasis in original). Plaintiff argued, without citing any authority, that an "opinion" is commonly understood to be "a statement originating from a declarant himself." (Id.). Plaintiff argued that Woeber knew of her client's purportedly false claim that his statements were his "personal opinion" as early as May 2017, when Woeber first represented Gmoser, and at the very least she "was obligated under Rule 3.3(a)(1) to correct the false assertion to this Court when her client decided to promote his statements as the opinion of another." (Id. at 5). Plaintiff informed the Court that she intended to file a second motion to

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disqualify Woeber and her law firm under Ohio Prof. Conduct Rule 3.3 on this basis alone.1 (Id.).

Plaintiff filed her second motion to disqualify on December 17, 2018 (Doc. 109), seeking to disqualify Woeber and her law firm from representing defendant Gmoser under Ohio Prof. Conduct Rule 3.3. (Doc. 109). Plaintiff premised her motion on grounds she had previously presented to the Court. First, plaintiff argued that Woeber knew that Gmoser had allegedly misrepresented that statements conveying the opinions of another individual - defendant Ferguson - were Gmoser's own opinions. (Id.). Plaintiff also asserted in a footnote that Woeber had misrepresented in defendants' motion for partial dismissal of the complaint (Doc. 22) that the Ohio constitution protects opinions that are not related to media statements. (Doc. 109 at 2, n.2). The Court has already considered plaintiff's arguments in prior Orders issued in this case. (See Doc. 128 at 8-9, Order on plaintiff's motion for partial reconsideration of her objections to Report and Recommendation (Doc. 42) and supplement to the motion (Doc. 107); Doc. 129, Order on plaintiff's objections (Doc. 89) to the undersigned's Order (Doc. 79) denying plaintiff's first motion to disqualify counsel). In accordance with the Court's prior rulings, plaintiff's second motion to disqualify must be denied.

In denying plaintiff's motion for partial reconsideration, the district judge rejected plaintiff's arguments that (1) the case law involving defamatory statements made to the media does not apply to plaintiff's defamation claims involving alleged defamatory statements that individuals make to other individuals, and (2) Gmoser's allegedly defamatory statements are not protected as opinions under Ohio law because the opinions Gmoser relayed were not his own.

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(Doc. 128 at 8-9). In his Order, the district judge first explained that under Ohio law, there is no "distinction between statements of opinion made by the media and private citizens" and that "protection for opinions exists for media defendants as well as for private citizens." (Doc. 128 at 8-9, citing Wampler v. Higgins, 93 Ohio St. 3d 111, 121, 752 N.E.2d 962, 972-73 (Ohio 2001); Accord SPX Corp. v. Doe, 253 F. Supp. 2d 974, 976 (N.D. Ohio 2003)). The district judge further stated that "whether an allegedly defamatory statement is fact or opinion" is a matter of law for the court to decide (Id. at 9, citing Vail v. Plain Dealer, 72 Ohio St.3d 279, 281, 649 N.E.2d 182, 185 (2003)), and this Court had already determined that the alleged defamatory statements identified by plaintiff, which included statements made by defendant Gmoser, were "statements of opinion." (Id.). The Court therefore declined to reconsider its Order dismissing plaintiff's defamation claims on this basis. (Id.).

The district judge relied on the same reasoning in overruling plaintiff's objections to the Order denying her first motion to disqualify counsel. (Doc. 129). The district judge directly addressed plaintiff's theory that Gmoser's statements were not protected opinions because they were actually the opinions of defendant Ferguson, and Woeber and her law firm should be disqualified from representing Gmoser under Ohio Prof. Conduct Rule 3.3 because Woeber purportedly misrepresented that the opinions were Gmoser's own. (Doc. 129). The district judge reasoned:

In her Supplement to her Objections, Plaintiff explains that a violation of Rule 3.3 of the Ohio Rules of Professional Conduct has occurred because Woeber represented to the Court that the statements of Defendant Michael Gmoser were his opinion, but Gmoser's discovery responses have revealed that the statements of Gmoser were actually the opinion of Defendant Dan Ferguson. Plaintiff argues that the common understanding of an "opinion" is one originating from the declarant himself, and therefore Woeber made a false statement of fact to the Court. In addition, in her Reply, Plaintiff explains that the deposition of Judge Spaeth reveals that the outburst referenced in [Doc. 60], Exhibit A is false because Judge Spaeth testified that he did not hear an outburst coming from Plaintiff's office.

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First, the Court notes that in denying Plaintiff's Motion for Reconsideration, the Court ruled that Gmoser's statements are not [sic] opinions protected by the Ohio Constitution because, Ohio courts have held that that "[n]o liability may arise from the accurate republication of constitutionally protected opinion."2 Condit v. Clermont Cty. Review, 110 Ohio App. 3d 755, 762, 675 N.E.2d 475, 479 (Ohio Ct. App. 1996) (citing Celebrezze v. Netzley, No. 53864, 1988 WL 87566, at *9 (Ohio Ct. App. Aug. 4, 1988), rev'd on other grounds, 51 Ohio St. 3d 89, 554 N.E.2d 1292 (Ohio 1990)).

(Id. at 5).

In support of her second motion to disqualify, plaintiff relies on the same argument she previously presented in her supplemental objections to the Court's Orders dismissing her defamation claims and denying her first motion to disqualify counsel. (Docs. 107, 108). The district judge has determined that disqualification of Woeber and her law firm is not warranted under Rule 3.3 on this ground. (Doc. 129; see also Doc. 128). The Court has specifically rejected plaintiff's argument that Gmoser's allegedly defamatory statements do not qualify as opinion statements entitled to protection under the Ohio constitution because the opinions Gmoser relayed were not his own. (Id.). Plaintiff has not proffered any new facts or authority which suggests that the Court should revisit its prior ruling and related findings. For the reasons previously stated by the Court, applicable Ohio law and the record before the Court fail to support a finding that Woeber violated Ohio Prof. Conduct Rule 3.3 by misrepresenting that statements made by her client, Gmoser, were statements of opinion protected under the Ohio constitution. In accordance with the Court's prior rulings, plaintiff's second motion to disqualify Woeber and her law firm under Ohio Prof. Conduct Rule 3.3 is not well-taken."

42 U.S.C. 2000e provides:

(a) The term “person” includes one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under title 11, or receivers.
(b) The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined in section 2102 of title 5), or (2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of title 26, except that during the first year after March 24, 1972, persons having fewer than twenty-five employees (and their agents) shall not be considered employers.
(c) The term “employment agency” means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.
(d) The term “labor organization” means a labor organization engaged in an industry affecting commerce, and any agent of such an organization, and includes any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment, and any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization.
(e) A labor organization shall be deemed to be engaged in an industry affecting commerce if (1) it maintains or operates a hiring hall or hiring office which procures employees for an employer or procures for employees opportunities to work for an employer, or (2) the number of its members (or, where it is a labor organization composed of other labor organizations or their representatives, if the aggregate number of the members of such other labor organization) is (A) twenty-five or more during the first year after March 24, 1972, or (B) fifteen or more thereafter, and such labor organization—
(1) is the certified representative of employees under the provisions of the National Labor Relations Act, as amended [29 U.S.C. 151 et seq.], or the Railway Labor Act, as amended [45 U.S.C. 151 et seq.];
(2) although not certified, is a national or international labor organization or a local labor organization recognized or acting as the representative of employees of an employer or employers engaged in an industry affecting commerce; or
(3) has chartered a local labor organization or subsidiary body which is representing or actively seeking to represent employees of employers within the meaning of paragraph (1) or (2); or
(4) has been chartered by a labor organization representing or actively seeking to represent employees within the meaning of paragraph (1) or (2) as the local or subordinate body through which such employees may enjoy membership or become affiliated with such labor organization; or
(5) is a conference, general committee, joint or system board, or joint council subordinate to a national or international labor organization, which includes a labor organization engaged in an industry affecting commerce within the meaning of any of the preceding paragraphs of this subsection.
(f) The term “employee” means an individual employed by an employer, except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States.
(g) The term “commerce” means trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof.
(h) The term “industry affecting commerce” means any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry “affecting commerce” within the meaning of the Labor-Management Reporting and Disclosure Act of 1959 [29 U.S.C. 401 et seq.], and further includes any governmental industry, business, or activity.
(i) The term “State” includes a State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and Outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act [43 U.S.C. 1331 et seq.].
(j) The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.
(k) The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e–2(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.
(l) The term “complaining party” means the Commission, the Attorney General, or a person who may bring an action or proceeding under this subchapter.
(m) The term “demonstrates” means meets the burdens of production and persuasion.
(n) The term “respondent” means an employer, employment agency, labor organization, joint labor-management committee controlling apprenticeship or other training or retraining program, including an on-the-job training program, or Federal entity subject to section 2000e–16 of this title.

Outcome: Plaintiff's verdict for $1.1 million.

Plaintiff's Experts:

Defendant's Experts:


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