United States District Court, D. Arizona
ORDER
DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE
Pending
before the Court are the “Request for
Clarification” (Doc. 161) and “Request for Leave
to File Reply on Application for Withdrawal of Counsel
Without Consent” (Doc. 162), both filed by Plaintiff
John Edwards's attorney Florin V. Ivan. For the following
reasons, the “Request for Clarification” will be
granted in part and denied in part and the “Request for
Leave to File Reply on Application for Withdrawal of Counsel
Without Consent” will be denied.
On June
11, 2019, Edwards's counsel, attorneys Florin V. Ivan and
Justin M. Clark and the law firms Ivan & Associates, P.C.
and Ivan and Kilmark, PLC (together, “Counsel”)
filed their Application for Withdrawal of Counsel Without
Consent (Doc. 151).
On June
14, 2019, the Court denied the application to withdraw
without prejudice, noting that “the withdrawal motion
comes at a very sensitive juncture in the case” and
further noting that “the Court is unable to determine
how much Counsel's reasons weigh in favor of withdrawal
because the Court has no idea what Counsel's reasons
are.” (Doc. 154 at 2.) The Court stated that Counsel
were permitted to file an ex parte affidavit under
seal, if they wished to explain their reasons for seeking
withdrawal, and set a deadline of June 17, 2019 for
submitting the ex parte affidavit. (Id. at
5.) The Court further stated that “if Plaintiff or
Defendants wish to oppose Counsel's withdrawal, they may
file a memorandum setting forth their reasons by June 27,
2019.” (Id.) Counsel did not file an ex
parte affidavit by (or after) the June 17 deadline.
Indeed, no motion to withdraw is pending before the Court.
June
17, 2019 was also the deadline for Edwards to “file a
written memorandum . . . showing cause why the SAC should not
be dismissed as to Vemma Vitamins and Tarak Mehta for failure
to serve the FAC and the SAC and for lack of personal
jurisdiction . . . or conceding that the SAC should be
dismissed as to Vemma Vitamins and Tarak Mehta.” (Doc.
148 at 16.) The Court had cautioned Edwards that any argument
that disregarded the orders already issued in the case would
be “deemed frivolous and potentially sanctionable.
(Id.)
On June
17, 2019, Counsel timely filed the memorandum and implied
that the Court's order had created a dilemma for Counsel:
“[T]he context here is that a memorandum must be filed,
counsel cannot concede dismissal without client consent, and
counsel cannot make arguments previously rejected by the
Court as to other defendants. This context basically sets the
stage for the short memorandum that follows.” (Doc. 155
at 2.) The one-paragraph argument that followed lacked merit,
and therefore, on June 19, 2019, the Court dismissed Vemma
Vitamins and Tarak Mehta without leave to amend, directed the
clerk of court to enter judgment, and ordered that any
Defendant wishing to file a motion for attorneys' fees
must do so within 14 days of entry of judgment. (Doc. 156.)
The clerk entered judgment on June 19, 2019 (Doc. 157), such
that all motions for attorneys' fees are due by July 3,
2019.
On June
26, 2019, Plaintiff directly filed (without his Counsel)
“a formal written request . . . to enter a Motion for
reconsideration.” (Doc. 158.) The request contained no
facts, law, or argument and did not adhere to various
procedural rules, including the rule that a represented
litigant may not file directly. On June 27, 2019, the Court
denied the request because “[i]t was filed by Plaintiff
personally, even though he is represented by counsel, in
violation of Local Rule 83.3(c)(2), and it was not signed by
Plaintiff's counsel, in violation of Rule 11(a) of the
Federal Rules of Civil Procedure.” (Doc. 159.)
That
same day, Counsel filed a Request for Clarification (Doc.
161). Counsel stated that the June 27, 2019 Order “does
not suggest counsel violated Rule 11(a) of the Federal Rules
of Civil Procedure: the order only states that the request
filed by Plaintiff himself did not comply with Rule 11(a)
because it was not signed by counsel” and requested
clarification if the Court intended a different construction.
(Doc. 161 at 2.)
The
Court did not intend a different construction. Thus, to the
extent Edwards and/or his Counsel sought clarification, that
request is granted. The June 27, 2019 Order does not suggest
or imply any misconduct by Edwards's Counsel.
Buried
in the Request for Clarification is a request that the Court
either “give Plaintiff a meaningful pro per hearing
regarding reconsideration, in the interest of procedural due
process” or “reconsider its denial of the
application for withdrawal of counsel, permitting Plaintiff
to appear pro per in the action and considering the merits of
any motion for reconsideration Plaintiff may file.”
(Id.)
The
Court will not reconsider its denial of the application for
withdrawal of counsel. As explained in the June 13, 2019
Order denying the application, Counsel failed to provide
reasons to establish justifiable cause. (Doc. 154.) The Court
afforded Counsel the opportunity to provide reasons via an
ex parte affidavit but Counsel declined to do
so.[1]Thus, there are no reasons before the Court
weighing in favor of withdrawal. Moreover, the Court finds
that withdrawal at this sensitive juncture of the case-the
motions for attorneys' fees are due on July 3-would
prejudice Defendants, Plaintiff, and the administration of
justice. Cf. Martin v. Weed Inc., 2019 WL 2100002,
*2 (D. Ariz. 2019) (“[W]ithdrawal at this time [less
than a week before argument on dispositive motions] 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.”); Reiffin v. Microsoft Corp., 2011
WL 2359059, *2-4 (N.D. Cal. 2011) (requiring attorneys to
continue representation in connection with pending motion for
attorneys' fees).
As for
the request that the Court “give Plaintiff a meaningful
pro per hearing regarding reconsideration, in the interest of
procedural due process” (Doc. 161 at 2), the Court
construes this as a motion to reconsider the Court's June
27, 2019 Order denying Edwards's request for leave to
file a motion for reconsideration.
Pursuant
to Local Rule 7.2(g), Edwards may file a motion for
reconsideration-he does not need to seek leave of the Court
to file one. However, as noted in the Court's May 27,
2019 Order, the rules do not permit Edwards to file a motion
directly, so long as he is represented. LRCiv 83.3(c)(2);
Fed.R.Civ.P. 11(a). The Court infers what was not explicitly
stated in Edwards's directly-filed request (Doc.
158)-that Edwards is seeking leave to directly file
a motion for reconsideration of the Court's June 19, 2019
Order dismissing Vemma Vitamins Pty. Limited and Tarak Mehta,
drafted by Edwards personally without the assistance of
Counsel, even though he is still represented by Counsel.
The
Court's May 20, 2019 Order explains that (1) Vemma
Vitamins Pty. Limited was never served, (2) Tarak Mehta had
not participated in the case since February 5, 2018 and was
never served with the SAC, and (3) the SAC did not include
facts that would establish personal jurisdiction over Vemma
Vitamins Pty. Limited or Tarak Mehta. (Doc. 148 at 11-12.)
Nevertheless, despite the existence of multiple grounds for
dismissing these defendants, the Court allowed Edwards the
opportunity to oppose dismissal. Counsel implied, in their
June 17 Memorandum, that they were unable to advance
nonfrivolous arguments opposing the dismissal of Vemma
Vitamins Pty. Limited and Tarak Mehta- and then indeed failed
to advance any. Counsel's inability to advance
nonfrivolous arguments opposing dismissal of these two
defendants leaves the Court convinced that none exist. Thus,
the Court does not perceive that due process requires a
departure ...