Whalen v. Toyota Motor Sales, U.S.A., Inc.

Filing 24

Order DENYING 23 Corrected MOTION for Brian A. Traywick and Justin Taylor to Withdraw as Attorney filed by Laura K Whalen, as set out. Should Attorney Traywick wish to refile his motion after resolving the deficiencies described herein, he should do so 11/9/2022. The Clerk is DIRECTED to TERMINATE attorney Justin M. Taylor. Signed by Magistrate Judge Katherine P. Nelson on 10/26/2022. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LAURA K. WHALEN,
Plaintiff,
v.
TOYOTA MOTOR SALES,
U.S.A., Inc.
Defendant.

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) CIVIL ACTION NO. 1:21-00503-KD-N
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ORDER

This action is before the Court on a corrected motion to withdraw as counsel
for Plaintiff, Laura K. Whalen, filed by attorney Brian A. Traywick of Shunnarah
Trial Attorneys. (Doc. 23).1 For reasons explained below, Traywick’s motion is
DENIED. Should Traywick desire to refile his motion after resolving the deficiencies
described below, he must do so no later than November 9, 2022.
Traywick filed his first motion to withdraw on October 17, 2022, citing an
inability to get in touch with his client. (See Doc. 21). Specifically, Traywick stated,
“[t]he plaintiff in this case has failed to contact the above counsel after counsel made
several attempts to contact her.” (Doc. 21, PageID.109). The motion goes on to request
the Court also “grant the Plaintiff 60 days to obtain a new [a]ttorney.” (Id.). Upon a
review of his motion, this Court’s local rules and the associated Alabama Rules of
Professional Conduct, the undersigned found Traywick had not established whether

The assigned District Judge referred the present motion to the undersigned Magistrate Judge for
appropriate action under 28 U.S.C. § 636(a)–(b), Federal Rule of Civil Procedure 72, and S.D. Ala.
GenLR 72(a). See S.D. Ala. GenLR 72(b); (10/25/2022 electronic reference).

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reasonable notice was provided to his client. See S.D. Ala. GenLR 83(h) and 83(i); Ala.
Rules of Prof. Conduct Rule 1.16. Specifically, the Court stated:
While Traywick has requested 60 days for his client to find a new
attorney, he has not provided any indication that reasonable notice was
provided to his client – nor whether any notice was provided at all. Thus,
at a minimum, Traywick must inform Whalen of his intent to withdraw
as counsel and communicate the basis for this decision with her.
Understanding that a lack of communication is at the crux of his
underlying motion, Traywick can accomplish the provision of reasonable
notice by serving Whalen with a copy of the motion to withdraw (Doc.
21) at her last known address and providing the Court with proof of
service to document this effort.
(See Doc. 22, PageID.113). The Court’s order also instructed Traywick to update the
Court on the status of attorney Justin M. Taylor and to provide Whalen’s last known
address for the Court’s records.
Traywick’s corrected motion (Doc. 23) attempts to comply with the Court’s
order, but remains deficient, and the Court remains unconvinced that Plaintiff Laura
K. Whalen has been given reasonable notice of Traywick’s intent to withdrawn.
Traywick’s corrected motion (Doc. 23) explains that he “hired a process server
on September 6, 2022, to make physical contact with the plaintiff,” and attaches the
sworn affidavit of hired process server Russell Payne. (See Doc. 23-1). Payne’s
affidavit, reproduced below, states in relevant part:

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(See Doc. 23-1, PageID.119).
Traywick also provides a copy of a certified letter mailed to Plaintiff on October
24, 2022, informing her of his intent to withdraw. The letter is addressed to Laura
Whalen at 625 Durden Road, Prattville, AL 36067. (Doc. 23-1, PageID.122).
First, Payne’s affidavit is clearly inconsistent, as it states that Payne “received
a request to hand deliver a letter to Laura Walker,” but notes the letter “was
addressed to Laura K Whalen.” (Doc. 23-1, PageID.119). The affidavit goes on to
describe a database search for “a possible current address for Laura Walker,” and the
attempt at service where one Donna Tadlock answered the door and accepted the
letter on behalf of “Laura Walker.” (Id.).
Moreover, while Traywick represents Whalen’s address to be 625 Durden Road
in Prattville, AL (see Doc. 23, PageID.116), and the October 24, 2022, certified letter
is addressed to Laura Whalen at this address (see Doc. 23-1, PageID.122), Payne’s
affidavit clearly states this location as a “possible current address for Laura Walker.”
(Doc. 23-1, PageID.119). Further calling into question whether this address belongs
to Plaintiff Laura Whalen or to an uninvolved Laura Walker is the listing of Plaintiff’s

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County of residence in both the notice of removal (Doc. 1, PageID.2) and civil cover
sheet (Doc. 1-1, PageID.10) as Perry County, AL. A basic Google Maps search reveals
that 625 Durden Road in Prattville, AL is in Autauga County, AL rather than Perry
County, AL.
While certainly possible that Plaintiff Whalen has moved since this action was
removed in November 2021, it is unclear whether the above-noted inconsistencies are
merely clerical errors, or if they are representative of a larger concern: i.e., that
provision of reasonable notice was made to the wrong person. Accordingly, Traywick
is ORDERED resolve these concerns for the Court.
As to the Court’s prior concerns regarding Justin M. Taylor, (see Doc. 22,
PageID.113), the undersigned is satisfied with Traywick’s representation that Taylor
has left Shunnarah Trial Attorneys and seeks to be withdrawn from this case. (See
Doc. 23, PageID.116). Accordingly, the Clerk is DIRECTED to TERMINATE
attorney Justin M. Taylor’s representation of Plaintiff Laura K. Whalen in this
matter.
DONE and ORDERED this the 26th day of October 2022.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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