Westchester Fire Insurance Co. v. Enviroguard, LLC et al

Filing 24

ORDER (see attached) re 23 Motion For Withdrawal of Appearance. Defendants Mario Marini and Michelle Marini (the "Marini Defendants") are hereby notified that, upon a finding of good cause, pursuant to D.Conn. L. Civ. R. 7(e) and Connecticut Rule 1.16(b) of Professional Conduct, the Court will grant the 23 motion of their counsel Stephen P. Wright to withdraw his appearance on July 25, 2014. On or before the close of business on that date, each Marini Defendant mus t either: (1) secure new counsel and direct that counsel to enter an appearance on his and/or her behalf or (2) file a pro se appearance (i.e., appear himself and/or herself) in this action. Failure of either Marini Defendant to comply with this Order may result in a default being entered against him or her. Signed by Judge Charles S. Haight, Jr. on June 25, 2014.(Dorais, L.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

WESTCHESTER FIRE INSURANCE
COMPANY,
Civil Action No.
3:13 - CV - 1620 (CSH)

Plaintiff,
v.
ENVIROGUARD, LLC; CLEAN AIR
CONSULTANTS, LLC; SILVERMINE
EQUITIES, LLC; MARK COSTANTINI;
LISA COSTANTINI; MARIO MARINI; and
MICHELLE MARINI,

JUNE 25, 2014

Defendants.

ORDER RE MOTION FOR WITHDRAWAL OF APPEARANCE [DOC. 23]

HAIGHT, Senior District Judge:
I. INTRODUCTION
Plaintiff Westchester Fire Insurance Company brings the present action against defendants
Enviroguard, LLC; Clean Air Consultants, LLC; Silvermine Equities, LLC; Mark Costantini; Lisa
Costantini; Mario Marini; and Michelle Marini, seeking to recover amounts owed under an
indemnity agreement dated October 15, 2010. After the action commenced, Enviroguard, LLC
("Enviroguard") and individual defendants Mark Costantini and Lisa Costantini filed Chapter 7
petitions in bankruptcy in the United States Bankruptcy Court of the District of Connecticut. See
Doc. 13 ("Notice of Bankruptcy" of Enviroguard, LLC – petition filed September 6, 2013) & Doc.
15 ("Notice of Bankruptcy" of Lisa Costantini and Mark Costantini – petition filed January 29,
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2014).

Pursuant to 11 U.S.C. § 362(a), the action was automatically stayed against the three

defendant debtors upon the filing of their bankruptcy petitions.
Pending before the Court is Attorney Stephen P. Wright's motion for leave to withdraw his
appearance as counsel of record for defendants Mario Marini and Michelle Marini (herein the
"Marini Defendants") pursuant to Local Rule 7(e) of Civil Procedure. Doc. 23. Wright states that
"good cause exists for the granting of this motion" in that "there has been an irreparable breakdown
in the attorney-client relationship and a breach of the retention agreement between counsel and the
Defendants." Id., p. 1.
In support of his motion to withdraw, Wright also cites Connecticut Rule of Professional
Conduct 1.16, which provides that counsel may withdraw his representation if "the client fails
substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given
reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;" or when "the
representation will result in an unreasonable financial burden on the lawyer or has been rendered
unreasonably difficult by the client.'" Id., p. 1. Wright contends that the Marini Defendants'
"inability to maintain the relationship with counsel" places him "in a precarious position of not being
able to properly defend" them and/or of "having to spend considerable time and out-of-pocket costs
if he is not permitted to withdraw." Id., p. 2. Because the litigation is in its early stages, "with
substantial discovery" yet to be completed by both parties, Wright maintains that his withdrawal
should be permitted at this time. Id.

II. DISCUSSION
In general, the court "has a great deal of discretion in deciding a motion for withdrawal of

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counsel." Vachula v. Gen. Elec. Capital Corp., 199 F.R.D. 454, 457 (D.Conn.2000) (citing Whiting
v. Lacara, 187 F.3d 317, 320 (2d Cir.1999)). Pursuant to Local Rule 7(e) of Civil Procedure,
"[w]ithdrawal of appearances may be accomplished only by leave of Court on motion duly noticed,
and normally shall not be granted except upon a showing that other counsel has appeared or that the
party has elected to proceed pro se, and that the party whose counsel seeks to withdraw has received
actual notice by personal service or by certified mail of the motion to withdraw." D. Conn. L. Civ.
R. 7(e). However, "[i]n cases where the party has failed to engage other counsel or file a pro se
appearance, where good cause exists for permitting the withdrawal by the appearing counsel, the
Court may grant the motion to withdraw the appearance after notice to the party that failure to either
engage successor counsel or file a pro se appearance will result in the granting of the motion to
withdraw and may result in a dismissal or default being entered against the party." Id.
"As a first step in considering counsel's request, the court looks to the Rules of Professional
Conduct as approved by the Judges of the Connecticut Superior Court . . . to determine whether
withdrawal is permissive or mandatory given the facts presented."1 Eaton v. Coca-Cola Co., 640
F.Supp. 2d 203, 206 (D.Conn. 2009) (quoting Vachula, 199 F.R.D. at 457).

Pursuant to

Connecticut's Rules of Professional Conduct and the case law applying those Rules in this District,
when there has been "an irreparable breakdown in [the] attorney-client relationship," withdrawal of
representation is often "warranted," and in circumstances of conflict of interest, even "required."
CP Solutions PTE, Ltd. v. General Elec. Co., 550 F.Supp. 2d 298, 302 (D.Conn. 2008) (granting
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Local Rule 83.2(a)(1) of Civil Procedure for the District of Connecticut adopts the
Rules of Professional Conduct, "as approved by the Judges of the Connecticut Superior Court as
expressing the standards of professional conduct expected of lawyers practicing in the District of
Connecticut." D. Conn. L. Civ. R. 83.2(a)(1). See also Haye v. Ashcroft, No. Civ.A. 3:01CV414
(CFD), 2004 WL 1936204, at *2 n.3 (D.Conn. Aug. 27, 2004).
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counsel's motion to withdraw in circumstances where counsel could "no longer communicate directly
with their client;" citing, inter alia, Conn. R. Prof'l Conduct 1.16(a)(1), 1.16(b)(4), & 1.7(a)). See
also Eaton v. Coca-Cola Co., 640 F.Supp. 2d 203, 206 (D.Conn. 2009) (finding "good cause" for
counsel to withdraw where counsel's relationship with client was "irrevocably broken;" citing Conn.
R. Prof'l Conduct 1.16(b)).
In the case at bar, Wright represents that the breakdown of his attorney-client relationship
with the Marini Defendants has impeded his ability to "properly defend" them. Doc. 23, p. 2. He
further asserts that they have broken the terms of their retention agreement with him. Id., p.1. He
argues that if he is not allowed to withdraw, representation of the Marini Defendants will become
unreasonably difficult, causing him to expend "considerable time" and pay "out-of-pocket costs" on
their behalf, especially where "substantial discovery" has yet to be completed. Id., p. 1-2. Wright
has warned the Marini Defendants that, due to "an irreparable breakdown" in their relationship, he
seeks to withdraw his appearance on their behalf in this action. Id., p. 1. To that end, he mailed to
them a copy of his present motion by "certified mail" on May 30, 2014. Id., p. 3 ("Certification").
More than three weeks have elapsed and there is no indication that the Marini Defendants
have responded in any way. They have not objected to Wright's motion. Moreover, no replacement
or additional counsel has entered an appearance on their behalf. They have also failed to inform the
Court of a desire or intention to proceed pro se.
Under these circumstances, the Court finds that good cause exists for permissible withdrawal
pursuant to Rule 1.16(b) of the Connecticut Rules of Professional Conduct. See Conn. R. Prof'l
Conduct 1.16(b) (5)-(6) (allowing withdrawal where "client fails substantially to fulfill an obligation
to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer
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will withdraw" and representation of the client "will result in an unreasonable financial burden on
the lawyer or has been rendered unreasonably difficult by the client").
Therefore, pursuant to D. Conn. L. Civ. R. 7(e), the Court hereby informs the Marini
Defendants that failure to either engage successor counsel or file a pro se appearance will result in
the granting of Wright's motion to withdraw [Doc. 13] and "may result in a . . . default being
entered" against them. D. Conn. L. Civ. R. 7(e).

III. CONCLUSION
In light of the irreparably broken relationship between counsel Stephen P. Wright and his
clients, Defendants Mario Marini and Michelle Marini, the Court hereby declares that it will grant
Wright's motion to withdraw his Appearance [Doc. 23] on July 25, 2014. On or before the close of
business on that date, each Marini Defendant must either: (1) secure new counsel and direct that
counsel to enter an appearance on his and/or her behalf or (2) file a pro se appearance (i.e., appear
himself and/or herself) in this action. Failure of either Marini Defendant to comply with this Order
may result in a default being entered against him or her.
The Clerk is directed to mail a copy of this Order to the Marini Defendants by certified mail
at the following address: 40 Sturbridge Lane, Trumbull, CT 06611.
It is SO ORDERED.
Dated: New Haven, Connecticut
June 25, 2014

/s/Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
Senior United States District Judge
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