Opinion
Civil Action No. 1:05-cv-1714-GET.
July 5, 2006
ORDER
The above-styled matter is presently before the court on:
(1) The motion of Cayenta Canada Corp. ("Cayenta") and the motion of L-3 Communications Titan Corp. ("L-3 Titan") to disqualify plaintiff's attorney [docket no. 32];
(2) plaintiff's motion for entry of judgment under Rule 54 (b) [docket no. 35];
(3) plaintiff's motion to dismiss Counts II and III of Cayenta's counterclaim [docket no. 45].
Plaintiff filed the instant action in the Superior Court of Newton County, Georgia on February 1, 2005, asserting a breach of contract claim against defendant RLI Insurance Corporation ("RLI"). Plaintiff claimed that RLI failed to satisfy its obligation to pay plaintiff under a performance bond that had become due when Cayenta failed to provide software as required under a series of separate contracts (collectively "the software contract"). RLI filed a third party complaint against Cayenta. Plaintiff amended its complaint on June 6, 2005, to raise claims of breach of contract against Cayenta and claims of fraud, negligent misrepresentation, and conspiracy to defraud against Cayenta and individuals employed by Cayenta ("individual defendants"), alleging that Cayenta failed to provide it with a contracted-for software program despite assurances from the individual defendants that the program would be provided.
RLI filed a motion for summary judgment on May 10, 2005, while the action remained in the state court. On June 29, 2005, Cayenta removed the action to federal court pursuant to 28 U.S.C. § 1441, alleging diversity jurisdiction under 28 U.S.C. § 1332. On July 7, 2005, Cayenta filed a motion to dismiss three counts of plaintiff's complaint. On July 22, 2005, plaintiff filed a motion to remand the action to state court. On September 2, 2005, L-3 Titan filed a motion to intervene in order to raise a conflict of interest concern against plaintiff's attorney. In an order December 14, 2005, this court granted RLI's motion for summary judgment, denied Cayenta's motion to dismiss, denied plaintiff's motion to remand, and granted L-3 Titan's motion to intervene.
On December 19, 2005, Cayenta and L-3 Titan jointly filed a motion to disqualify plaintiff's attorney, the law firm of Paul, Hastings, Janofsky Walker LLP ("Paul Hastings"), due to an alleged conflict of interest. On January 10, 2006, plaintiff filed a motion for entry of judgment under Rule 54(b), regarding this court's decision to grant RLI's motion for summary judgment. On April 7, 2006, plaintiff filed a motion to dismiss counts II and III of Cayenta's counterclaim.
During its consideration of the instant motions, the court will refer to the intervening party as L-3 Titan. Although the parties distinguish between L-3 Titan's existence at the time it owned Cayenta by calling it Titan, and its existence after a subsequent merger, there is no indication that the parties believe that the merger affected the issues in the pending motions.
Motion to Disqualify
L-3 Titan argues that Paul Hastings should be disqualified from its representation of plaintiff in this matter due to a conflict of interest. Conflicts of interest are evaluated under "the Code of Professional Responsibility and the Standards of Conduct contained in the Rules and Regulations of the State Bar of Georgia, and the decisions of this court interpreting those rules and standards." LR 83.1C, ND Ga. L-3 Titan and Cayenta contend that L-3 Titan is a current client of Paul Hastings and Cayenta is a former client. Therefore, Paul Hastings' representation of a plaintiff whom, if successful, will harm its current and former clients is prohibited by the Georgia Rules of Professional Conduct 1.7(a) and 1.9(a).
1. Conflict of Interest with Current Client
Rule 1.7 (a) provides that "[a] lawyer shall not represent . . . a client if there is a significant risk that the lawyer's own interests or the lawyer's duties to another client . . . will materially and adversely affect the representation of the client." Ga. R. Prof. Conduct 1.7(a). The comments to the notes explain that Rule 1.7(a) expresses the general rule that "loyalty to a client prohibits undertaking representation directly adverse to that client." Ga. R. Prof. Conduct 1.7(a), cmt. 3. "Courts and ethics panels generally take a broad view of the restriction, and a specific adverse effect will probably not have to be shown. All that need be present is that one lawyer or firm is representing two clients, even in unrelated matters, with potentially conflicting interests." Worldspan, L.P. v. Sabre Group Holdings, Inc., 5 F.Supp.2d 1356, 1357 (N.D. Ga. 1998). L-3 Titan asserts that it is a current client of Paul Hastings, and that the instant action is directly adverse to its interests. Paul Hastings contends both that L-3 Titan is not a current client, and that the instant action is not directly adverse to L-3 Titan.
First, Paul Hastings argues that L-3 Titan is not a current client, because the one remaining matter on which Paul Hastings has been working for L-3 Titan has settled and is awaiting the parties' signature. Paul Hastings states that it will not accept any more work from L-3 Titan during the pendency of the instant action. L-3 Titan argues that it is a current client and, more importantly, that it was a current client at the time Paul Hastings filed the complaint against Cayenta. "A lawyer may not evade ethical responsibilities by choosing to jettison a client whose continuing representation becomes awkward." Harrison v. Fisons Corp., 819 F.Supp. 1039, 1041 (M.D. Fla. 1993); see also Hilton v. Barnett Banks, Inc., 1994 WL 776971 (M.D. Fla. 1994) (court analyzed conflict under the current client rule though counsel terminated its representation of one party after the action was filed). Because it is undisputed that Paul Hastings has represented L-3 Titan during the pendency of the instant action, the court finds that L-3 Titan is a "current client" within the meaning of Rule 1.7(a).
Secondly, Paul Hastings argues that the instant action is not directly adverse to L-3 Titan. L-3 Titan argues that the action is directly adverse because L-3 Titan is liable if plaintiff prevails in the instant action against Cayenta. When L-3 Titan sold Cayenta to a third party, the purchase contract contained an indemnification provision requiring L-3 Titan to indemnify Cayenta and its parent for any damages sustained under the software contract. Because any liability of L-3 Titan flows from the purchase contract between L-3 Titan and a third party, Paul Hastings argues that the potential liability is too attenuated to be directly adverse. The purchase contract is not currently at issue before this court, and L-3 Titan's liability depends upon Cayenta losing the instant lawsuit and the indemnification provision being found binding. Paul Hastings further argues that L-3 Titan is not a party to the contracts that are at issue in the case, the software contract and the performance bond, and thus could not have been named by plaintiff in the instant action.
In support of its position that L-3 Titan's financial risk is too attenuated to show direct adversity, Paul Hastings compares L-3 Titan to an insurer defending its insured pursuant to an indemnity provision. The attorney hired by an insurance company to represent its insured is not necessarily precluded from accepting that representation due to a pending action in which he represents third party policyholders against the insurance company. Emons Indus., Inc. v. Liberty Mut. Ins. Co., 747 F.Supp. 1079 (S.D.N.Y. 1990). See also ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 05-435 (attorney who represents a liability insurer may be permitted to represent another client against an insured of that company in separate litigation). Paul Hastings contends that the instant matter is analogous.
Initially, the court observes that an advisory opinion of the Georgia Supreme Court has held that, in some situations, it may be unethical for an attorney to defend a client pursuant to an insurance contract, which gives the insurance company a subrogation right in any recovery, and simultaneously represent, in an unrelated matter, the insurance company. See Ga. SC Formal Advisory Op. 99-1. Moreover, the insurance industry analogy is insufficient to preclude a finding of direct adversity in the instant matter. The relationship between an insured and insurer is unique. An insurance company has thousands of policyholders that it has agreed to indemnify as a matter of course in a variety of situations causing harm to the insured. Further, it is not closely connected with the policyholders. However, Paul Hastings' client, L-3 Titan, agreed to indemnify Cayenta or its new parent corporation based on harm arising from the particular software contract under which plaintiff sued. Further, L-3 Titan and Cayenta shared management personnel, employees, corporate policies and headquarters at the time Paul Hastings represented L-3 Titan. Finally, Paul Hastings was aware of the indemnity agreement and a fund set aside for potential indemnity payments due, in part, to work it performed while representing L-3 Titan. Therefore, unlike the situation of an attorney representing an insurance company with thousands of insured parties who conduct litigation on a variety of issues, Paul Hastings represented L-3 Titan, which had an interrelated corporate structure and an indemnity provision under the software contract with the subsidiary Paul Hastings sued.
Moreover, Paul Hastings' argument that there is no direct adversity because plaintiff could not name L-3 Titan as a defendant and that the liability of L-3 Titan arises under a contract not at issue is unavailing. In Formal Advisory Opinion 99-1, the Georgia Supreme Court held that, under the precursor to Ga. R. Prof. Conduct 1.7(a), "an attorney may not simultaneously represent clients that have directly adverse interests in litigation that is the subject matter of either one of the representations," and that interests may be adverse despite the insurer not being a named party. Ga. SC Formal Advisory Op. 99-1. The court has found that L-3 Titan is a current client of Paul Hastings. It is undisputed that L-3 Titan is under a contractual obligation which, if found enforceable, requires L-3 Titan to indemnify Cayenta or its new parent corporation for any liability arising from the software contract. The instant action was filed by Paul Hastings on behalf of plaintiff to recover under that software contract. Consequently, Paul Hastings is representing a party whom, if successful, puts a current client directly at risk of financial harm. Accordingly, the court finds that the instant action is directly adverse to the interests of Paul Hastings' current client.
However, the existence of a conflict does not require the conclusion that Paul Hastings must be disqualified. Worldsipan, 5 F.Supp.2d at 1361; Glover v. Libman, 578 F. Supp. 748 (N.D. Ga. 1983), The court approaches a disqualification motion with caution. Ramada Franchise Sys., Inc. v. Hotel of Gainesville Assoc., 988 F.Supp. 1460, 1462 (N.D. Ga. 1997). "However, courts must ensure that the trust and loyalty owed by lawyers to their clients are not compromised." Id. at 1463. In determining whether disqualification is appropriate, the court may consider: (1) whether the conflict might affect the pending litigation; (2) at what stage of litigation the disqualification issue was raised; (3) whether other counsel can handle the matter; (4) the appearance of impropriety; (5) and the costs of disqualification.Worldspan, 5 F.Supp.2d at 1361-1362; Glover, 578 F.Supp. at 766.
L-3 Titan argues that the factors weigh in favor of disqualification. The conflict affects the pending litigation because Paul Hastings discovered the indemnification provision and funds set aside in order to indemnify Cayenta during its representation of L3-Titan, and such discovery could bear on Paul Hastings' decision to file the lawsuit and affect settlement negotiations. Paul Hastings contends that anything in the SEC filings was a matter of public knowledge, and as such Paul Hastings may ethically use it in the representation of Cayenta. L-3 Titan states that the second factor weighs in favor of disqualification because L-3 Titan requested Paul Hastings' withdrawal as soon as the complaint against Cayenta was filed. L-3 Titan argues that the third factor weighs in favor of disqualification because other comparable firms can adequately represent plaintiff. Finally, L-3 Titan argues that there is an appearance of impropriety when an attorney discovers that a current client has funds set aside in case of a specific suit, and then files that suit against the client. The primary cost of disqualifying plaintiff's attorney is delay in proceedings, but four months remain in discovery, which does not begin until this order is issued, so finding another attorney should not significantly delay disposition of this case. After reviewing the parties' arguments, the court finds that the balance of the factors weighs in favor of disqualification.
2. Conflict of Interest with Former Client
Cayenta argues that even if the court had not found a conflict of interest sufficient to disqualify Paul Hastings from its dealings with L-3 Titan, Paul Hastings' previous representation of Cayenta requires disqualification of the firm. Rule 1.9(a) provides that "[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 consents after consultation." Ga. R. Prof. Conduct 1.9(a). "[T]he party seeking disqualification must prove it once had an attorney client relationship with the opposing lawyer and that the subject matter of the two transactions is substantially related." Ramada, 988 F.Supp. at 1463. Paul Hastings contends that Cayenta was not a former client, and that the alleged prior representation is not substantially related to the instant action.
First, Paul Hastings contends that Cayenta was not a former client. Cayenta argues that Paul Hastings' work restructuring Cayenta for tax benefits to L-3 Titan and preparing SEC filings created an attorney-client relationship between Cayenta and Paul Hastings. Paul Hastings argues that any work it performed was only done on behalf of L-3 Titan. Paul Hastings also points out that Cayenta was represented by separate Canadian counsel during its sale to its current parent corporation. Finally, Paul Hastings argues that its work for L-3 Titan on the SEC filings is insufficient to create an attorney-client relationship between Paul Hastings and all of L-3 Titan's subsidiary companies at that time.
While Paul Hastings may be correct that certain work done for L-3 Titan does not create an attorney-client relationship with Cayenta, Paul Hastings takes too restrictive a view of the type of relationship required for a conflict of interest to arise. "[T]he focus is not on whether the relationship at issue is in all respects that of attorney and client, but whether there exist sufficient aspects of an attorney-client relationship for purposes of triggering inquiry into the potential conflict."Ramada, 988 F.Supp. at 1463 (internal citations omitted). Thus, whether an affiliated corporation, such as a subsidiary, of a direct client is considered a client for disqualification purposes depends on the facts and circumstances involved. Id. at 1464-1465 (finding an identity of interest where the corporate entities had similar management personnel, same headquarters and legal department, and similar corporate principles.)
Cayenta has provided the affidavit of Scott Meader, the Director of Strategic Transactions for L-3 Titan, who also held that position at the time L-3 Titan owned Cayenta. Mr. Meader testified that Cayenta and L-3 Titan had such an indistinguishable corporate structure that they were recognized and operated as one and the same, and shared the same management personnel. Further, Mr. Meader testified that the officers and directors of Cayenta were considered L-3 Titan employees, that Cayenta and L-3 Titan shared the same headquarters, in-house legal department, corporate principles and business philosophies. Accordingly, the court finds that the relationship between Paul Hastings and Cayenta was sufficient to raise a conflict issue, particularly when the representation nominally for L-3 Titan involved restructuring Cayenta.
Secondly, Paul Hastings contends that the alleged prior representation is not substantially related to the instant action. L-3 Titan and Cayenta argue that Paul Hastings became familiar with Cayenta's structure and document filing systems through the restructuring, which will aid it in discovery.
"The substantial relationship inquiry is restricted to the possibility of disclosure; the court may not inquire into whether actual confidences were disclosed." Ramada, 988 F. Supp. at 1463. In making a determination of whether a substantial relationship exists, the court should determine the scope of the prior representation, the reasonableness of inferring that confidential information allegedly given would have been given, and the relevance of the information to the issues raised in the pending litigation. Id.
Paul Hastings argues that it cannot be perceived as "changing sides," the pertinent determination under the Georgia Rules of Professional Conduct. Ga. R. Prof. Conduct 1.9(a), Cmt. 2. Further, Paul Hastings argues that general allegations of familiarity with the structure of the company from transactional work are not enough to merit disqualification. Camelyle Towers Condominium Ass'n Inc. v. Crossland Sav., FSB, 944 F. Supp. 341 (D.N.J. 1996). Therefore, because Paul Hastings' prior work was restructuring Cayenta in order to gain tax advantages for L-3 Titan, and that neither the taxes nor structure are at issue in the instant case, there is no "changing of sides."
Despite Paul Hastings' argument that the scope of its representation of Cayenta was limited to tax matters, "[a] tax lawyer must, at least as a general proposition, be familiar with all aspects of a client's business to give sound advice."Worldspan, 5 F.Supp.2d at 1362. This familiarity imparts a knowledge of "filing systems, responsibilities of specific employees and their habits, which employees would have what information, and a myriad like pieces of unconsciously absorbed information [that] can have a great value to an attorney engaged in discovery." Id. It is, therefore, reasonable to infer that Paul Hastings gained knowledge of the internal workings of Cayenta that could aid it in the instant representation, particularly in the discovery process. An affidavit provided by Cheryl Barr, the Assistant General Counsel at the time L3-Titan owned Cayenta, recounts that Paul Hastings had forty-two separate communications with L-3 Titan and Cayenta regarding the restructuring of the relationship. Accordingly, the court finds that there is sufficient evidence to support a finding of a substantial relationship between the instant matter and Paul Hastings' prior representation of Cayenta.
As discussed above, this court's finding of a conflict does not require disqualification of Paul Hastings. Worldspan, 5 F.Supp.2d at 1361. Rather, the court must now consider: (1) whether the conflict might affect the pending litigation; (2) at what stage of litigation the disqualification issue was raised; (3) whether other counsel can handle the matter; (4) the appearance of impropriety; and (5) the costs of disqualification.Id. at 1361-1362; Glover, 578 F. Supp. at 766.
Cayenta argues that the conflict affects the pending litigation because knowledge gained in Paul Hastings' previous representation might aid discovery in the instant matter. Again, L-3 Titan and Cayenta requested Paul Hastings' withdrawal as soon as the complaint against Cayenta was filed, and argue that other comparable firms can handle the instant matters for plaintiff. There is an appearance of impropriety when an attorney works closely with a subsidiary of its client and then sues that subsidiary. Finally, the costs of disqualifying plaintiff's attorney are limited because four months remain in discovery, which does not begin until the instant order has been issued, giving plaintiff time to find another attorney. After reviewing the parties' arguments, the court finds that the balance of the factors weighs in favor of disqualification.
Accordingly, and for all the aforementioned reasons, the joint motion of Cayenta and L-3 Titan to disqualify Paul Hastings [docket no. 32] is hereby GRANTED.
Motion for Entry of Judgment
On December 14, 2005, this court issued an order granting RLI's motion for summary judgment based on its determination that the performance bond under which plaintiff's claims were based had expired. Plaintiff seeks an entry of judgment on the court's summary judgment determination in order to immediately appeal the decision, pursuant to Fed.R.Civ.P. 54(b). Rule 54(b) permits the court to direct the entry of a final judgment as to one or more but fewer than all claims or parties upon an express determination that there is no just reason for delay "[w]hen more than one claim for relief is presented in an action or when multiple parties are involved." However, "Rule 54(b) certifications `must be reserved for the unusual case in which the costs and risks of multiplying the number of proceedings and of overcrowding the appellate docket are outbalanced by pressing needs of the litigants.'" Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 166 (11th Cir. 1997). A decision is eligible for Rule 54(b) certification when the case involves: (a) multiple claims or multiple parties; (b) a final decision on at least one claim or decision as to the liability of one party; and (c) a district court determination that there is no just reason for delay. See Fed.R.Civ.P. 54(b).
The instant matter involves multiple parties and multiple claims: plaintiff's claim against Cayenta under the software contract, plaintiff's claim against the individual defendants based on their alleged representations concerning work under the software contract, and plaintiff's claim against RLI under the performance bond. Further, a decision as to one claim has been reached. The decision must be a final judgment, "a `judgment' in the sense that it is a decision upon a cognizable claim for relief, and. `final' in the sense that it is `an ultimate disposition of an individual claim entered in the course of a multiple claims action." Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7, 100 S. Ct. 1460 (1980). The court's decision to grant summary judgment in favor of RLI was a final judgment because it determined that RLI was not liable on plaintiff's claim for breach of the performance bond.
Finally, in order to certify a case for immediate appeal under Rule 54(b), "the district court must evaluate whether there is any just reason to delay the appeal of individual final judgments." Ebrahimi, 114 F.3d at 165. "It is left to the sound judicial discretion of the district court to determine the `appropriate time' when each final decision in a multiple claims action is ready for appeal." Curtiss-Wright, 446 U.S. at 8. "The question requires the district court to balance judicial administrative interests and relevant equitable concerns to limit Rule 54(b) certification to instances in which immediate appeal would alleviate some danger of hardship or injustice associated with delay." Ebrahimi at 165-166.
Plaintiff contends that there is no sound reason to delay appellate resolution of the summary judgment because the enforceability of the performance bond is a separate issue from the remaining claims involving breach of the software contract. Therefore, permitting the appeal to go forth will not delay proceedings in the trial court. Plaintiff's remaining claim against Cayenta is based on the software contract and on representations of Cayenta's employees. It does not require the court to consider RLI's obligation under the performance bond. Moreover, the Eleventh Circuit Court of Appeals may review this court's decision on the motion for summary judgment without considering the parties' obligations under the software contract, the basis of the claims remaining before this court.
RLI contends that because its obligation on the performance bond is dependent upon Cayenta's liability under the software contract, if Cayenta prevails on the remaining claims, RLI cannot be found liable regardless of the enforceability of the performance bond. See O.C.G.A. § 10-7-2 (if obligation of principal becomes extinct, so does obligation of the surety). However, plaintiff plans to appeal any decision counter to it, so that even if the court delayed certification of the summary judgment for appeal, the appellate court would have to determine both whether Cayenta was liable and whether RLI was obligated under the performance bond. While it is possible that the appellate court could determine Cayenta's liability and avoid decision on RLI's claim, it is a remote possibility and insufficient to create "just reason for delay." RLI's final contention is likewise insufficient: that its counterclaims against Cayenta remaining on the record create reason for delay. RLI's claim against Cayenta solely depended upon RLI's obligation under the performance bond. Therefore, this court's determination that RLI is not obligated on the performance bond renders the counterclaims moot.
Accordingly, and for all the aforementioned reasons, plaintiff's motion for entry of judgment [docket no. 35] is hereby GRANTED. The Clerk is hereby DIRECTED to enter final judgment in favor of RLI on plaintiff's claim against it, pursuant to this court's decision in the December 12, 2005 order granting summary judgment.
Motion to Dismiss
Plaintiff seeks dismissal of counts II and III of Cayenta's counterclaim against it. Count II asserts a cause of action for breach of warranty of good faith and fair dealing, and Count III asserts a claim for unjust enrichment. After plaintiff filed its motion to dismiss, Cayenta filed an amended counter-claim. Plaintiff does not object to the filing of the amended counter-claim. The amended counter-claim removes the cause of action for breach of warranty of good faith and fair dealing. Therefore, plaintiff's motion to dismiss, insofar as it relates to Cayenta's claim for breach of warranty of good faith and fair dealing, is DENIED AS MOOT. The amended counter-claim also clarifies that the unjust enrichment action is an alternative to Cayenta's breach of contract claim against plaintiff. Plaintiff contends that Cayenta's unjust enrichment claim is barred due to its admission that an express contract exists between the parties.
Standard
A motion to dismiss under Rule 12(b) (6) attacks the legal sufficiency of the complaint. It is viewed with disfavor and rarely granted. See e.g., Int'l Erectors, Inc. v. Wilhoit Steel Erectors Rental Serv., 400 F.2d 465, 471 (5th Cir. 1958). A complaint should not be dismissed for failure to state a claim unless the plaintiff can prove no set of facts entitling him to relief. Hishon v. King Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229 (1984); Pataula Elec. Membership Corp. v. Whitworth, 951 F. 2d 1238, 1240 (11th Cir. 1992) The court is to presume true all of the complaint's allegations and make all reasonable inferences in favor of the plaintiff. Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993). The rules require nothing more than "a short and plain statement" that will give the defendant fair notice of the claims and the grounds upon which they are based. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99 (1957).
Discussion
"The theory of unjust enrichment applies when there is no legal contract and when there has been a benefit conferred which would result in an unjust enrichment unless compensated." Smith Serv. Oil Co., Inc. v. Parker, 250 Ga. App. 270, 272 (2001). Cayenta contends that it may assert alternative and inconsistent claims, and Count II for unjust enrichment does not include the allegation that the parties had an express contract. However, Cayenta does not dispute the existence of the contract, stating in allegations under the heading "Facts" that "Cayenta and Snapping Shoals entered into three (3) agreements for installation and implementation of Cayenta's utility management software: a License Agreement, a Services Agreement, and a License Supplement (collectively, `the Software Contracts.')" Plaintiff also does not dispute the existence of the contract, having made a similar allegation in its own complaint, to which Cayenta admitted in its answer. The parties' claims are not based on any contention that the contract is invalid, but rather based on breach. "[B]ecause neither side disputes the existence of a valid contract, the unjust enrichment claim is improper." Am. Casual Dining, L.P. v. Moe's Southwest Grill, L.L.C., 426 F.Supp.2d 1356 (N.D. Ga. 2006).Accordingly, plaintiff's motion to dismiss [docket no. 45] is hereby GRANTED as to Cayenta's unjust enrichment claim and DENIED AS MOOT as to Cayenta's claim for breach of warranty of good faith and fair dealing.
Summary
(1) Cayenta and L-3 Titan's motion to disqualify plaintiff's attorney [docket no. 32] is GRANTED;
(2) plaintiff's motion for entry of judgment under Rule 54(b) [docket no. 35] is GRANTED;
(3) plaintiff's motion to dismiss Counts II and III of Cayenta's Counterclaim [docket no. 45] is GRANTED as to Cayenta's unjust enrichment claim and DENIED AS MOOT as to Cayenta's claim for breach of warranty of good faith and fair dealing.
SO ORDERED.