United States District Court, D. Arizona
ORDER
Honorable Rosemary Márquez, United States District
Judge
Pending
before the Court is attorney Dennis Wilenchik's
“Motion to Withdraw as Counsel of Record for
Plaintiff/Counter-Defendant William Martin Without
Consent” (Doc. 85), as well as a “Stipulated
Motion to Vacate Hearing and Reschedule Within Two
Weeks.” (Doc. 86.) The Court will deny without
prejudice both the pending Motion to Withdraw (Doc. 85) and
the pending Stipulation to Vacate and Reschedule (Doc. 86).
On
April 11, 2019, the Court set oral argument on cross-motions
for partial summary judgment, to be held on May 16, 2019.
(Doc. 56 and Doc 75.) On May 10, 2019, Plaintiff's
attorney Dennis Wilenchik filed the instant Motion to
Withdraw, seeking leave for his firm, Wilenchik &
Bartness, to withdraw as attorneys of record. (Doc. 85.)
Plaintiff has not consented to the withdrawal. (Doc. 85.) On
May 14, 2019, Plaintiff's attorneys filed the instant
Stipulation to vacate and reschedule oral argument. (Doc.
86.) The Stipulation states that Counsel for Defendant has
agreed to vacate the hearing only if it is rescheduled within
the next two weeks. (Doc. 86.)
I.
Motion to Withdraw as Counsel for Plaintiff/Counter-Defendant
(Doc. 85)
Local
Rule of Civil Procedure (LRCiv) 83.3(b) “sets forth the
technical requirements for withdrawing as counsel of record
in the District Court of Arizona.” Bohnert v.
Burke, No. CV-08-2303-PHX-LOA, 2010 WL 5067695, at *1
(D. Ariz. Dec. 7, 2010). An attorney of record may not
withdraw “in any pending action except by formal
written order of the Court, supported by written application
setting forth the reasons therefore together with the name,
last known residence and last known telephone number of the
client.” LRCiv 83.3(b). In addition, where, as here,
the motion to withdraw “does not bear the written
approval of the client, it shall be made by motion and shall
be served upon the client and all other parties or their
attorneys.” LRCiv 83.3(b)(2).
As an
initial matter, counsel's Motion to Withdraw does not
provide the “last known residence” of the client,
as required by LRCiv 83.3(b), and instead provides only a
post office box mailing address. (Doc. 85.) Because the Court
rests its denial of counsel's motion on the discretionary
factors discussed below, it is not necessary to determine
here whether the omission of the client's “last
known residence” should be excused in the instant case.
See Gagan v. Monroe, No. CIV 99-1427-PHX-RCB, 2013
WL 1339935, at *4 (D. Ariz. Apr. 1, 2013) (granting motion of
counsel to withdraw although it provided client's mailing
address rather than the client's last known residence.)
Apart
from the technical requirements of LRCiv 83.3, the Court in
its discretion finds that withdrawal here would not be in the
interests of justice as this time. “Factors that a
district court should consider when ruling upon a motion to
withdraw as counsel include: (1) the reasons why withdrawal
is sought; (2) the prejudice withdrawal may cause to other
litigants; (3) the harm withdrawal might cause to the
administration of justice; and (4) the degree to which
withdrawal will delay the resolution of the case.”
Gagan, 2013 WL 1339935, at *4 (citing, inter
alia, Bohnert, 2010 WL 5067695.)
Here,
oral argument on the parties' motions for partial summary
judgment has been set for several weeks. Plaintiff's
attorneys seeking withdrawal briefed the Response in
Opposition to Defendants' Motion for Partial Summary
Judgment and Plaintiff's Cross Motion for Partial Summary
Judgment. (Doc. 75.) Indeed, Plaintiff's current counsel
has represented Plaintiff since the underlying Complaint was
filed on January 19, 2018. (Doc. 1.) The Court declines to
authorize withdrawal now, with less than a week before
argument on dispositive motions. The Court finds that
withdrawal at this time would be unfairly prejudicial to
Plaintiff, who has not consented to counsel's withdrawal,
as well as unfairly prejudicial to Defendants and to the
timely administration of justice. Moreover, counsel has not
specified the reasons why withdrawal is sought, stating only
that there is an impasse with the client but not specifying
that the impasse is intractable or what steps have been taken
to resolve it. (Doc 85.) The Motion to Withdraw will
therefore be denied without prejudice and counsel may raise
the issue again following oral argument.
II.
Stipulated Motion to Vacate Hearing and Reschedule Within Two
Weeks (Doc. 86)
The
Court finds that a two-week postponement would be
insufficient for Plaintiff to find and retain replacement
counsel and for such replacement counsel to then also prepare
for oral argument on the pending motions for summary
judgment. The Court will therefore deny the Stipulated Motion
to Vacate and Reschedule. (Doc. 86).
Accordingly,
IT IS HEREBY ORDERED that plaintiff's
counsel's Motion to Withdraw as Counsel of Record for
Plaintiff/Counter-Defendant (Doc. 85) is denied
without prejudice. Counsel is granted leave to
refile after the scheduled oral argument on the parties'
cross-motions for summary judgment.
IT
IS FURTHER ORDERED that the Stipulated Motion to
Vacate Hearing and Reschedule Within Two Weeks (Doc. 86) is
denied without prejudice. Oral argument on
the parties' motions for ...