Schudel et al v. Miller et al

Filing 99

ORDER denying 95 Motion to Reverse Court Order Allowing Withdrawal of Plaintiff's Counsel Anthony Viorst. By Magistrate Judge Kristen L. Mix on 7/29/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01864-REB-KLM
JEFFREY SCHUDEL,
Plaintiff,
v.
LA SALLE POLICE OFFICER DAVID MILLER, in his individual and official capacities,
LA SALLE POLICE OFFICE VICTOR ERAZO, in his individual and official capacities, and
DALE PARRISH, ESQ.,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff's Motion to Reverse Court Order
Allowing Withdrawal of Plaintiff’s Counsel Anthony Viorst [Docket No. 95; Filed July
9, 2013] (the “Motion”). On July 11, 2013, Plaintiff’s former counsel, Anthony Viorst
(“Viorst”) filed a Response [#97]. On July 18, 2013, Plaintiff filed a Reply [#98]. The Motion
is therefore ripe for review.
On June 4, 2013, the Court issued an Order [# 94] granting Attorney Viorst’s Motion
to Withdraw as Attorney [#92]. The Court found that Attorney Viorst’s request complied
with the requirements set forth in D.C.COLO.LCivR 83.3, in part because he cited to
irreconcilable differences as a ground to withdraw. The Court therefore allowed Attorney
Viorst to withdraw as counsel for Plaintiff. Approximately one month later, Plaintiff, now
proceeding as a pro se litigant, filed the present Motion, asked the Court to reconsider

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allowing Attorney Viorst to withdraw and to sanction Attorney Viorst for allegedly misleading
the Court.
A motion for reconsideration “is an extreme remedy to be granted in rare
circumstances.” Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 944 (10th Cir. 1995).
It is well established in the Tenth Circuit that grounds for a motion to reconsider are limited
to the following: “(1) an intervening change in the controlling law; (2) new evidence
previously unavailable; and (3) the need to correct clear error or prevent manifest injustice.”
Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citing Brumark, 57
F.3d at 948). Therefore, a motion to reconsider is “appropriate [only] where the court has
misapprehended the facts, a party's position, or the controlling law.” Id.
The Court has reviewed the Motion, the Response, and the Reply, and although
both Plaintiff and Attorney Viorst provide additional facts regarding Attorney Viorst’s desire
to withdraw from representation of Plaintiff, the briefs clearly support Attorney Viorst’s
original contention that irreconcilable differences have arisen between him and Plaintiff.
Simply stated, the Court cannot compel an attorney to represent a litigant in a civil action.
Plaintiff’s complaints about Attorney Viorst relate to whether Attorney Viorst honored his
alleged agreement with Plaintiff about payment of costs in this lawsuit. Although those
complaints might be the basis for other action, they are not a proper basis to order
Attorney Viorst to continue to represent Plaintiff in this case.

The attorney-client

relationship has broken down, and Attorney Viorst should be permitted to withdraw.
Regarding Plaintiff’s Motion, the requirements for reconsideration of the Court’s previous
Order have not been met. Although the parties provide some new evidence regarding the
Motion, the Court has not “misapprehended the facts.” Servants of Paraclete, supra.
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The Motion [#95] must be denied. Plaintiff may either hire new counsel or proceed
in this matter as a pro se litigant. To the extent that Plaintiff feels that he cannot bear the
responsibility of proceeding as a pro se litigant at this time, he may voluntarily dismiss his
case without prejudice pursuant to Fed. R. Civ. P. 41(a). However, while the case is
pending, it remains Plaintiff’s legal obligation to comply with the Federal Rules of Civil
Procedure, the Local Rules in this District, and all orders of this Court. See Green v.
Dorrell, 969 F.2d 915, 917 (10th Cir. 1992).
For these reasons,
IT IS HEREBY ORDERED that the Motion [# 95] is DENIED.

Dated: July 29, 2013

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