Brown v. Glendale, City of et al

Filing 57

ORDER: IT IS ORDERED that: (1) The Wilenchik Firm's motion to withdraw (Doc. 49 ) is denied without prejudice; (2) The Fowler Firm's motion to withdraw (Doc. 51 ) is denied without prejudice; (3) Either Firm may, if it wishes to do so, re-file a withdrawal motion that attempts to satisfy the "justifiable cause" standard; and (4) Defendants' deadline to file an application for attorneys' fees pursuant to the Courts May 1, 2019 Order is June 12, 2019 [see attached Order for details]. Signed by Judge Dominic W Lanza on 6/5/19. (MAW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Antonio Brown,
Plaintiff,

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ORDER

v.

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No. CV-18-01267-PHX-DWL

City of Glendale, et al.,

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Defendants.

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Plaintiff’s attorneys have filed a pair of withdrawal motions (Docs. 49, 51). As
explained below, the motions will be denied without prejudice.
BACKGROUND

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This lawsuit was filed in April 2018. (Doc. 1.) In a nutshell, Plaintiff is pursuing

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claims for malicious prosecution (both under 42 U.S.C. § 1983 and under state law)

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following his acquittal in a state-court prosecution for sexual assault. (See generally Doc.

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34.) Plaintiff contends the charges arose because a member of the Glendale Police

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Department filed false police reports, lied in a search warrant affidavit and while testifying

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before a state grand jury, and concealed exculpatory evidence. (Id.) From the outset of

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the case, Plaintiff has been represented by two different law firms: Wilenchik & Bartness

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PC (“the Wilenchik Firm”) and Fowler St. Clair, PLLC (“the Fowler Firm”). (Id. at 1.)

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On April 29, 2019, the parties brought a discovery dispute to the Court’s attention.

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(Doc. 44.) The dispute concerned persistent failures by Plaintiff’s attorneys to respond to

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discovery requests and to verify and supplement Plaintiff’s disclosures. (Id.)

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On May 1, 2019, following a hearing concerning the discovery dispute, the Court

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issued a minute order requiring Plaintiff’s attorneys to provide the requested verifications

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and supplementation and extending the deadlines in the scheduling order only as to

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Defendants. (Doc. 48.) This minute order also authorized Defendants to file a motion for

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attorneys’ fees but required the parties to meet and confer beforehand. (Id.)

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On May 8, 2019, one week after this minute order was issued, the Wilenchik Firm

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filed a motion to withdraw as counsel. (Doc. 49.) The motion states that the “grounds” for

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the withdrawal request are that “Plaintiff is presently represented in this matter by co-

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counsel [the Fowler Firm] and a grant of this Motion would not result in Plaintiff being

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unrepresented.” (Doc. 49 at 2.)

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Later that day, the Fowler Firm filed its own motion to withdraw as counsel. (Doc.

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51.) This motion states that the Fowler Firm “does not have the experience or resources to

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handle litigation of this nature on its own” and agreed to participate in the case only because

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it had the “understanding and expectation that . . . [the Wilenchik Firm would] act as lead

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counsel based on their experience with § 1983 claims specifically, and federal litigation

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more generally.” (Id. at 1-2.)

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The next day, Defendants filed a response to both motions. (Docs. 53, 54.)

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Defendants “take no position” concerning the withdrawal requests but ask the Court to

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defer ruling on the requests until after Defendants file (and the Court rules upon) an

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attorneys’ fee request that Defendants purportedly planned to file “in the very near future.”

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(Doc. 53 at 1.)

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It has now been 27 days since Defendants filed their response, but no attorneys’ fee
motion has been filed. Plaintiff has not responded to either motion to withdraw.

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ANALYSIS

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Both withdrawal motions will be denied without prejudice. Although Local Rule

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83.3 only enacts certain procedural requirements governing attorney withdrawal requests

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and doesn’t specify a substantive standard for evaluating such requests,1 Ninth Circuit law

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In contrast, several other district courts embed a substantive standard within their
local rules on attorney withdrawal. See, e.g., The Thompsons Film, LLC v. Boe, 2015 WL
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suggests a “justifiable cause” standard applies when, as here, the client doesn’t

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affirmatively consent to the request. Lovvorn v. Johnston, 118 F.2d 704, 706 (9th Cir.

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1941) (“An attorney may not, in the absence of the client’s consent, withdraw from a case

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without justifiable cause; and then only after proper notice to his client, and on leave of the

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court.”); see also LRCiv 83.3(b) (except for an in-office change of counsel, counsel

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seeking withdrawal must file a written application “setting forth the reasons therefor”).

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“Justifiable cause” is not a terribly demanding standard, but it hasn’t been satisfied

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here.

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withdraw—it simply provides that Plaintiff won’t be prejudiced by the withdrawal because

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the Fowler Firm will still be around to handle the case. Lack of prejudice to the client is a

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separate matter from the reasons justifying the withdrawal. Moreover, only a few hours

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after this motion was filed, the Fowler Firm filed its own withdrawal motion, arguing that

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it doesn’t have the experience and resources to handle the case without the help of the

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Wilenchik Firm. Assuming arguendo this might be a justifiable cause for withdrawal, it is

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premised on the Court granting the Wilenchik Firm’s motion—which the Court will not do

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at this juncture.

The Wilenchik Firm’s motion doesn’t identify any reason why it wishes to

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It is entirely possible the Wilenchik Firm has other reasons for seeking to withdraw

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from this case—reasons that would meet the “justifiable cause” standard—that it was

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hoping to avoid mentioning in the docket. See Ariz. R. Prof. Conduct 1.16 (identifying

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various permissible grounds for terminating representation). Although discretion is often

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a virtue, here that discretion has deprived the Court of any legitimate basis for granting its

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withdrawal motion. And unless and until the Court authorizes the Wilenchik Firm’s

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withdrawal, the justification provided in the Fowler Firm’s withdrawal application is

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12868203, *1 (E.D. Wash. 2015) (“Pursuant to LR 83.2(d)(4), . . . [an] attorney’s motion
for withdrawal must demonstrate good cause and must be filed and served on the client and
opposing counsel.”); SEC v. Stratocomm Corp., 2013 WL 3542621, *1 (N.D.N.Y. 2013)
(“Withdrawal of counsel in a civil case is governed by Local Rule 83.2(b) which provides
. . . [that an] attorney who has appeared may withdraw only upon notice to the client and
all parties to the case and an order of the Court, upon a finding of good cause, granting
leave to withdraw.”); Hallmark Capital Corp. v. Red Rose Collection, Inc., 1997 WL
661146, *2 (S.D.N.Y. 1997) (“Withdrawal of counsel is governed by S.D.N.Y. Local Civil
1.4 . . . [which requires] ‘satisfactory reasons for withdrawal,’ not ‘good cause.’”);
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unavailing—although the Fowler Firm may also have other as-yet-undisclosed reasons that

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would meet the “justifiable cause” standard.

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Finally, to the extent Defendants still wish to file an application for attorneys’ fees

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pursuant to the Court’s May 1, 2019 Order (Doc. 48), the Court will set a deadline of June

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12, 2019.

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Accordingly,

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IT IS ORDERED that:

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(1)

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The Wilenchik Firm’s motion to withdraw (Doc. 49) is denied without

prejudice;
(2)

The Fowler Firm’s motion to withdraw (Doc. 51) is denied without

prejudice;
(3)

Either Firm may, if it wishes to do so, re-file a withdrawal motion that

attempts to satisfy the “justifiable cause” standard; and
(4)

Defendants’ deadline to file an application for attorneys’ fees pursuant to the

Court’s May 1, 2019 Order is June 12, 2019.
Dated this 5th day of June, 2019.

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