Frank v. Rockhill Insurance Company

Filing 28

ORDER denying without prejudice 18 Motion for Cease and Desist Order; denying without prejudice 21 Motion for Appointment of Magistrate Judge to Supervise Depositions Where Plaintiff is Present; granting 27 Merlin Law Group, P.A.'s Motion to Withdraw as Counsel of Record for Plaintiff. See Order for details. Signed by Magistrate Judge Carol Mirando on 5/9/2018. (DRS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
HOWARD FRANK,
Plaintiff,
v.

Case No: 2:18-cv-162-FtM-99CM

ROCKHILL INSURANCE
COMPANY,
Defendant.
ORDER
This matter comes before the Court upon review of Merlin Law Group, P.A.’s
Motion to Withdraw as Counsel of Record for Plaintiff, filed on May 7, 2018,
Defendant’s Motion for Appointment of Magistrate Judge to Supervise Depositions
Where Plaintiff is Present, filed on April 20, 2018, and Defendant’s Motion for Cease
and Desist Order, filed on April 17, 2018 Docs. 18, 21, 27. For the reasons stated
below, Merlin Law Group, P.A.’s motion will be granted, and Defendant Rockhill
Insurance Company’s (“Rockhill”) motions will be denied without prejudice.
First, the Merlin Law Group, P.A., including attorneys Kelly L. Kubiak, Esq.
and Eric Dickey, Esq., seeks to withdraw as counsel of record for Plaintiff Howard
Frank due to “irreconcilable differences” that “render the continued representation of
the Plaintiff unreasonably difficult to continue and not in the best interests of the
client.” Doc. 27 at 1. A motion to permissively withdraw is a matter within the
discretion of the court. Obermaier v. Driscoll, No. 2:00-CV-214-FtM-29D, 2000 WL
33175446, at *1 (M.D. Fla. Dec. 13, 2000). Under the Local Rules, “no attorney,

having made a general appearance under subsection (a) of [Local Rule 2.03] shall
thereafter abandon the case or proceeding in which the appearance was made, or
withdraw as counsel for any party therein, except by written leave of Court obtained
after giving ten (10) days’ notice to the party or client affected thereby, and to
opposing counsel.” M.D. Fla. Rule 2.03(b). Since the re-filing of Merlin Law Group,
P.A.’s motion, Plaintiff has been provided the requisite notice.

Doc. 27 at 2.

Accordingly, counsel will be permitted to withdraw, and Plaintiff shall have up to and
including June 11, 2018 to retain counsel and have counsel file a Notice of Appearance
with the Court or to notify the Court he intends to proceed pro se.
Second, Rockhill seeks a cease and desist order and the appointment of a
Magistrate Judge to oversee depositions. Docs. 18, 21. In both motions, counsel for
Rockhill indicated she was unable to confer with counsel for Plaintiff given his
counsel’s requested withdrawal, which also prevented Plaintiff from responding to
the motions. See Doc. 18 at 4-5; Doc. 21 at 2. Although the Court understands the
reasons Rockhill was unable to confer regarding its motions, both of the motions will
be denied without prejudice due to the inability to properly confer. Rockhill may
refile its motions if necessary after Plaintiff either has retained counsel or notified
the Court of his intention to proceed pro se and the parties have had the opportunity
to meaningfully confer.

Until such time, the Court directs Plaintiff not to

communicate with or leave messages for Rockhill or its employees.
The Court notes Plaintiff’s previous counsel requested thirty (30) days for Mr.
Frank to retain new counsel, and the Court encourages him to do so. See Doc. 27 at

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2; see also Montgomery v. Brickell Place Condo. Ass’n, No. 11-24316-CIV, 2012 WL
1203837, at *3 (S.D. Fla. Apr. 11, 2012) (encouraging pro se plaintiff to “retain legal
counsel and, failing that, to diligently research how to prosecute” a case in federal
court because pro se parties are responsible for discovery, complying with scheduling
orders, and following federal and local rules). If Mr. Frank decides to proceed pro

se, he is warned that “the right of self-representation does not exempt a party from
compliance with relevant rules of procedural and substantive law.” Sanders v. Fluor

Daniel, Inc., 151 F.R.D. 138, 139 (M.D. Fla. 1993), aff’d sub nom. Sanders v. Fluor
Daniels, Inc., 36 F.3d 93 (11th Cir. 1994) (quoting Kersh v. Derozier, 851 F.2d 1509,
1512 (5th Cir. 1988)).

Mr. Frank also must comply with the Middle District of

Florida Local Rules. Failure to comply with the Court’s Orders or the Federal or
Local Rules could result in sanctions. A copy of the Local Rules may be obtained from
the Court’s website at http://www.flmd.uscourts.gov/.

Moreover, the website

includes a “Litigants without Lawyers” page containing tips, frequently asked
questions, sample forms, and a “Guide for Proceeding without a Lawyer.”
ACCORDINGLY, it is
ORDERED:
1.

Merlin Law Group, P.A.’s Motion to Withdraw as Counsel of Record for

Plaintiff (Doc. 27) is GRANTED. The Clerk of Court is directed to terminate Kelly
L. Kubiak, Esq., Eric Dickey, Esq., and the Merlin Law Group, P.A. as counsel of
record for Plaintiff Howard Frank and remove them from receiving future notices of
electronic filings.

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2.

Plaintiff Howard Frank shall have up to and including June 11, 2018 to

retain counsel and have counsel file a Notice of Appearance with the Court or to notify
the Court he intends to proceed pro se.
3.

Defendant’s Motion for Appointment of Magistrate Judge to Supervise

Depositions Where Plaintiff is Present (Doc. 21) is DENIED without prejudice.
4.

Defendant’s Motion for Cease and Desist Order (Doc. 18) is DENIED

without prejudice.
5.

Plaintiff shall not communicate with or leave messages for Rockhill or

its employees until he has retained counsel and counsel has filed a Notice of
Appearance, or he has notified the Court he intends to proceed pro se.
DONE and ORDERED in Fort Myers, Florida on this 9th day of May, 2018.

Copies:
Counsel of record
Unrepresented parties

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