United States District Court, D. North Dakota
ORDER DENYING MOTION TO DISQUALIFY COUNSEL
Charles S. Miller, Jr., Magistrate Judge
the court is Defendants Unleashed Performance Labs, Inc.,
Jessie Rodenbough, and Matthew Rodenbough's “Motion
to Disqualify Counsel.” (Docket No. 54). Unless
otherwise noted, the following relevant facts are either
undisputed or have not been sufficiently controverted.
February 24, 2016, Running Horse, LLC (“Running
Horse”) initiated this action against Jessie
Rodenbough, Matthew Rodenbough, and Rodenbough Trucking &
Excavating, Inc. (“RTE”) seeking to recover in
excess of $1, 400, 000. (Docket No. 1). This complaint
generally alleged Jessie Rodenbough used her position as
office manager/bookkeeper at Running Horse to make
unauthorized transfers from Running Horse to RTE, a business
owned by her and her husband, Matthew Rodenbough. With the
court's leave, Running Horse filed its second amended
complaint that asserts multiple causes of action against the
Rodenboughs and RTE, including: fraud, fraud and deceit,
breach of contract, conversion, civil theft, breach of
fiduciary duty, conspiracy, violation of the Racketeering
Influenced and Corrupt Organizations Act, violation of the
Computer Fraud and Abuse Act, and violation of the Uniform
Fraudulent Transfer Act. (Docket No. 45).
second amended complaint, Running Horse also included
Unleashed Performance Labs, Inc. (“UPL”) as a
defendant. With respect to UPL, the second amended complaint
144. In early 2016, Matt Rodenbough, [Jessie] Rodenbough and
RTE, Inc. transferred at least $100, 000 of the monies
Defendants stole from Running Horse to accounts for Unleashed
Performance with the actual intent to hinder, delay or
defraud Running Horse.
145. Before the transfer was made, Defendants had been sued
or threatened with suit by Running Horse.
146. Matt Rodenbough, [Jessie] Rodenbough and RTE, Inc.
transferred the $100, 000 to Unleashed Performance without
receiving a reasonably equivalent value in exchange for the
transfer and Matt Rodenbough, [Jessie] Rodenbough, and RTE,
Inc. became insolvent as a result of the transfer.
147. Matt Rodenbough, [Jessie] Rodenbough, RTE, Inc. and
Unleashed Performance are liable to Running Horse pursuant to
the Uniform Fraudulent Transfer Act, N.D.C.C. 13-02.1 et.
(Docket No. 23-1). This complaint does not assert any other
cause of action against UPL.
to commencement of this litigation, Jessie Rodenbough
retained Jason Frazer, a partner at O'Donnell, Ferebee
& Frazer, P.C., to serve as counsel in incorporating UPL
during March 2015. Frazer and O'Donnell, Ferebee &
Frazer, P.C. (collectively “Frazer”) also
currently represent Running Horse. According to his
affidavit, Frazer prepared the organizational paperwork for
UPL, which he filed with the Nevada Secretary of State.
(Docket No. 65-1). As a part of this process, Frazer and
Jessie Rodenbough engaged in a series of email exchanges in
which they discussed the necessary information for
incorporation, including: the name of the entity; the type of
entity; the address for the entity; who would serve as the
registered agent; name of officers; and the name of directors
or managers. (Docket No. 90). According to his affidavit,
Frazer also advised UPL on filing a trademark and acquiring
an employer identification number for tax purposes. (Docket
No. 65-1). Frazer's representation ended on May 14, 2015.
Neither Frazer nor O'Donnell, Ferebee & Frazer, P.C.
have provided any further representation to UPL since that
current motion, the Defendants ask the court to remove Frazer
and his firm as counsel for Running Horse. The Defendants
argue removal is necessary because Frazer's prior
representation of UPL is substantially related to his current
representation of Running Horse.