Taylor v. USA

Filing 34

MEMORANDUM OPINION- DENYING 22 MOTION for S. Harold Lankenau, Esquire to Withdraw as Attorney. Signed by Judge Sherry R. Fallon on 5/7/2013. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
NICOLE TAYLOR,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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Civil Action No. 12-12-SLR-SRF

MEMORANDUM OPINION
I.

INTRODUCTION
Pending before the court in this matter is a Motion to Withdraw as Plaintiffs Counsel

(D.I. 22) filed by S. Harold Lankenau ("Plaintiffs Counsel"). For the reasons which follow, the
Motion to Withdraw as Plaintiffs Counsel is DENIED.
II.

BACKGROUND
This trip and fall action was brought by Nicole Taylor (the "Plaintiff') against the United

States (the "Defendant") on January 5, 2012. (D.I. 1) Plaintiffs Complaint alleges that on June 2,
2009, she tripped and fell from a broken curb in the parking area of the United States Post Office
on Lancaster Avenue in Wilmington, Delaware. (!d.

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4-6)

Plaintiff's claim against the Defendant arises under the Federal Tort Claims Act

("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. The FTCA is the exclusive remedy for damages
for personal injury "resulting from the negligent or wrongful act or omission of any employee of
the Government while acting within the scope ofhis office or employment."§ 2679(b)(l).
This matter was referred to the court by District Judge Sue L. Robinson to hear and
resolve all pretrial motions up to and including the pretrial conference. (D.I. 3) The court entered
a scheduling order setting a discovery cut off of March 25, 2013. (D.I. 10) The pretrial

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conference is scheduled for July 15, 2013, and a two day bench trial before Judge Robinson
begins on August 13, 2013. (D.I. 14)
Plaintiffs Counsel filed the pending motion, along with a supporting memorandum
(collectively, the "Motion" or "Motion to Withdraw") on January 23, 2013. (D.I. 22, 23) In those
submissions, Plaintiffs Counsel argues that "there has been a breakdown in the attorney-client
relationship." (D.I. 23

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4) The Defendant opposes the withdrawal of Plaintiffs Counsel on the

basis that it would adversely affect the efficient administration of justice. (D.I. 25 at 3) The
Defendant maintains it would be prejudiced by withdrawal this close to trial. (!d. at 4)
On April 8, 2013, the court held a hearing regarding the Motion to Withdraw. Plaintiffs
Counsel represented at the hearing that the Plaintiff does not object to his Motion. However, the
Plaintiff, individually, stated at the hearing that she opposes her counsel's withdrawal.
Thereafter, on April 10, 2013, the Defendant moved for leave to file a motion for summary
judgment. (D.I. 33)

III.

LEGAL STANDARD
This court's Local Rule 83.7, titled "Substitution and Withdrawal of Attorney," provides

that:
An attorney may withdraw an appearance for a party without the Court's

permission when such withdrawal will leave a member of the Bar of this Court
appearing as counsel of record for the party. Otherwise, no appearance shall be
withdrawn except by order on a motion duly noticed to each party and served on
the party client, at least 14 days before the motion is presented, by registered or
certified mail addressed to the client's last known address.
D. Del. LR 83.7. "When a motion to withdraw is filed, and substitute counsel has not entered an
appearance on the affected party's behalf, the decision as to whether to allow counsel to
withdraw its representation is within the discretion of the Court." Ohntrup v. Firearms Ctr., Inc.,
802 F .2d 676, 679 (3d Cir. 1986).

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In Worldspan, L.P. v. Ultimate Living Grp., LLC, 2006 WL 1046942 (D. Del. Apr. 20,
2006), this court set out a list of factors to be considered in ruling upon a motion to withdraw
where, as here, the affected party is an individual: (1) the reasons why withdrawal is sought; (2)
the prejudice withdrawal may cause to the litigants; (3) the delay in the resolution of the case
which would result from withdrawal; and (4) the effect of withdrawal on the efficient
administration of justice. Worldspan, 2006 WL 1046942, at *1. "A court may also consider the
effect of withdrawal on communications between the litigants and the Court." Id (citing
Ohntrup, 802 F.2d at 679).

The District of Delaware has adopted the American Bar Association's Model Rules of
Professional Conduct ("Model Rules"). See D. Del. LR 83.6(d); 1 Apeldyn Corp. v. Samsung
Elecs. Co., 660 F. Supp. 2d 557, 561 (D. Del. 2009). Model Rule 1.16, which relates to declining

or terminating representation, provides that:
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a
client if:
(1) withdrawal can be accomplished without material adverse effect on the
interests of the client; ....
(c) A lawyer must comply with applicable law requiring notice to or permission
of a tribunal when terminating a representation. When ordered to do so by a
tribunal, a lawyer shall continue representation notwithstanding good cause for
terminating the representation.
Model Rule 1.16(b), (c).
IV.

DISCUSSION
A. Reasons Why Withdrawal is Sought

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Local Rule 83.6(d) provides:
Subject to such modifications as may be required or permitted by federal statute,
court rule, or decision, all attorneys admitted or authorized to practice before this
Court, including attorneys admitted on motion or otherwise, shall be governed by
the Model Rules of Professional Conduct of the American Bar Association
("Model Rules"), as amended from time to time.
D. Del. LR 83.6(d).

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Plaintiff's Counsel claims that he cannot "effectively represent a client who will not
communicate with counsel and insists on communicating with the defendant without counsel."
(D.I. 27 at 1) Plaintiff's Counsel also asserts that there has been a breakdown in the attorneyclient relationship. (Id) The Plaintiff filed with the court a collection of letters to her counsel and
to opposing counsel. (D.I. 32) While the letters illustrate some tension and frustration in the
attorney-client relationship between the Plaintiff and Plaintiff's Counsel, the court is not
persuaded that the relationship is irretrievably harmed and would be ineffective going forward.
See Sharp v. Verizon Del. Inc., 2012 WL 6212615, at *3 (D. Del. Dec. 12, 2012) (explaining,
"while a difference of opinion between counsel and client is not a compelling reason for
withdrawal," this court has found that good cause exists to grant an attorney's motion to
withdraw where "the attorney/client relationship has become irretrievably harmed." (citation
omitted)); Turner v. First Corr. Med, 2012 WL 2061712, at *1 (D. Del. June 7, 2012) (granting
motion to withdraw where the attorney/client relationship was "irretrievably broken"). Concerns
regarding communication between the Plaintiff and Plaintiff's Counsel were addressed with the
Plaintiff at the hearing and the Plaintiff provided a post office box address, email address, and
telephone number where her attorney can contact her about matters relating to the case.
B. Prejudice that Withdrawal May Cause to the Litigants

The withdrawal of Plaintiff's Counsel at the current stage of the case is likely to prejudice
both parties in this matter. "When courts have denied such motions due in part to the state of the
case schedule, it has almost uniformly been because the motion to withdraw was made at or near
trial ... ."Sharp, 2012 WL 6212615, at *4. See, e.g., Carter v. City of Philadelphia, 2000 WL
537380, at *2 (E.D. Pa. Apr. 25, 2000) (denying motion to withdraw, in part, because if the
motion were granted, plaintiff would be forced to try the case pro se "five weeks from today");

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Chester v. May Dep't Store, 2000 WL 12896, at *1 (E.D. Pa. Jan. 7, 2000) (denying motion to
withdraw, in part, because "all discovery and pretrial proceedings [had] concluded," and the case
was on the eve of trial); Rusinow v. Kamara, 920 F. Supp. 69, 72 (D.N.J. 1996) (denying motion
in part because counsel had litigated the case on behalf of plaintiffs for two years and trial was
less than two weeks away); Mervan v. Darrell, 1994 WL 327626, at *1-2 (E.D. Pa. July 8, 1994)
(denying motion where trial date was scheduled for less than two months from date of denial). In
the present case, the trial date of August 13, 2013 is less than four months away, which weighs
against granting the Motion to Withdraw.
In addition, it is unlikely the Plaintiff would be able to retain substitute counsel this close
to the trial date. The court "is cognizant of the difficulties that a pro se plaintiff can face in
litigating a civil case; this can be considered a real prejudice that Plaintiff would suffer if the
Motion [to withdraw] was granted and if [s]he was not thereafter able to obtain substitute
counsel." Sharp, 2012 WL 6212615, at *4 (emphasis added) (citing Carter, 2000 WL 537380, at
*2; Mervan, 1994 WL 327626, at *1-2). Here, withdrawal of Plaintiffs Counsel would leave the
Plaintiff to complete on her own the pretrial stipulation governing the course of the trial. The
Plaintiff would be required to arrange for the trial appearance of any medical expert she intends
to call in support of her damages. Furthermore, if the court grants leave for the Defendant to file
a case dispositive motion, the Plaintiff would be forced respond to such a motion pro se.
Therefore, requiring the Plaintiff to proceed pro se, without the advice and assistance of counsel,
would prejudice the Plaintiff, and would likely hinder the efficient process of the case towards its
trial date.
The withdrawal of Plaintiffs Counsel would also prejudice the Defendant. The
Defendant opposes the Motion to Withdraw, in part, because the Plaintiff "has been an

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intractable litigant." (D.I. 25 at 3) For example, the Defendant has had difficulty obtaining
discovery from the Plaintiff, which ultimately led to the court entering an Order (D.I. 31)
compelling the Plaintiffs discovery responses. Furthermore, decisions from courts in this Circuit
suggest that prejudice is likely to exist where one party objects in good faith to the withdrawal of
opposing counsel. See, e.g., Sharp, 2012 WL 6212615, at *5 (finding no prejudice where the
defendant did not oppose withdrawal of plaintiffs counsel); Magargal v. New Jersey, 2011 WL
5526077, at *2 (D.N.J. Nov. 14, 2011) (finding that allowing withdrawal of plaintiffs counsel
would not prejudice defendants, where defendants did not indicate any objection to motion).
C. Delay in Resolution of the Case That Would Result from Withdrawal

The parties are now less than four months from trial. As discussed previously, it is
unlikely that the Plaintiff could timely secure new counsel or that new counsel would be
prepared to go to trial as presently scheduled. If withdrawal of Plaintiffs Counsel is permitted, it
would inevitably delay the bench trial that is scheduled to commence in August. The Plaintiff
would be required to complete her portion of the pretrial order, in compliance with D. Del. LR
16.3(c), without the assistance of counsel, appear at the pretrial conference scheduled for July 15,
2013, and present her case at trial on August 13, 2013. The circumstances are such that "the
grant of the Motion will directly impact pending litigation events" and "interfere with trial
preparations." Sharp, 2012 WL 6212615, at *5.
D. Effect of Withdrawal on the Efficient Administration of Justice

The withdrawal of Plaintiffs Counsel would negatively impact the efficient
administration of justice if the Plaintiff is unable to obtain new counsel. "Courts have
understandably found that were a plaintiff unable to obtain new counsel and required to litigate
[her] case on [her] own behalf, the grant of a motion to withdraw could have an impact on the

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efficient administration of justice." Sharp, 2012 WL 6212615, at *5 (citing Carter, 2000 WL
537380, at *2; Chester, 2000 WL 12896, at *1; Mervan, 1994 WL 327626, at *1-2). Requiring
the Plaintiff to litigate this action on her own behalf would make it reasonably unlikely that the
case would be properly prepared for the bench trial as scheduled. Therefore, this factor weighs
against granting the Motion to Withdraw.

E. Effect of Withdrawal on Communication Between Litigants and the Court
Permitting Plaintiff's Counsel to withdraw would leave the court without a reliable
mechanism for responsible supervision of Plaintiff's communications with the Defendant and
this court. Courts "have been disinclined to permit withdrawal in circumstances where the party
affected has been 'an intractable litigant."' Sharp, 2012 WL 6212615, at *6 (quoting Worldspan,
2006 WL 1046942, at *1). See also Ohntrup, 802 F.2d at 679 (upholding denial of motion to
withdraw, in part, because affected party had been an "intractable litigant"). Here, the Defendant
maintains the Plaintiff"has been an intractable litigant" (D.I. 25 at 3) based the Plaintiff's lack of
cooperation with discovery requests, and the demeanor Plaintiff exhibited during her deposition.
(D.I. 26, Ex. 1) The record demonstrates a basis for the Defendant's concern about the ability to
communicate with Plaintiff in the absence of Plaintiff's Counsel. Therefore, this factor weighs
against granting the Motion to Withdraw.

V.

CONCLUSION
For the foregoing reasons, the balance of the Worldspan factors weigh against granting

the Motion to Withdraw. Thus, it is hereby ORDERED that the Motion is DENIED.
This Memorandum Order is filed pursuant to 28 U.S.C. § 636(b)(l)(A), Fed. R.
Civ. P. 72(a), and D. Del. LR 72.1. The parties may serve and file specific written objections

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within fourteen (14) days after being served with a copy of this Memorandum Order. Fed. R.
Civ. P. 72(a). The objections and responses to the objections are limited to ten (10) pages each.
The parties are directed to the court's Standing Order in Non-Pro Se Matters for
Objections Filed Under Fed. R. Civ. P. 72, dated November 16, 2009, a copy of which is
available on the court's website, http://www.ded.uscourts.gov.

Dated: May 7, 2013

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