Lauro v. State of Hawaii et al
Filing
169
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S ATTORNEYS' 137 MOTION TO WITHDRAW AS COUNSEL FOR PLAINTIFF THOMAS LAURO. Signed by MAGISTRATE JUDGE BARRY M. KURREN on 8/14/2015. ~ The Motion is GRANTED with respect to Counsel M aria Ann Carmichael and DENIED as to Michael Jay Green, Earl I. Anzai, and Glenn H. Uesugi. Related doc: 158 EP: Hearing on Motion to Withdraw as Counsel (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry. Copy served to Plaintiff by first class mail on 8/14/2015.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
THOMAS LAURO,
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Plaintiff,
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vs.
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STATE OF HAWAII, ET AL.,
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Defendants.
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______________________________ )
CIV. NO. 12-00637 DKW-BMK
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
ATTORNEYS’ MOTION TO
WITHDRAW AS COUNSEL FOR
PLAINTIFF THOMAS LAURO
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
ATTORNEYS’ MOTION TO WITHDRAW AS COUNSEL FOR
PLAINTIFF THOMAS LAURO
Before the Court is Michael Jay Green, Earl I. Anzai, Maria Ann
Carmichael, and Glenn H. Uesugi’s Motion to Withdraw as Counsel for Plaintiff
Thomas Lauro (hereinafter “Counsel’s Motion to Withdraw”). (Doc. 137.) These
matters came on for hearing on August 10, 2015. (Doc. 158.) Plaintiff appeared at
the hearing by phone. (Id.) Also appearing were Plaintiff’s Counsel Michael Jay
Green, Earl I. Anzai, and Glenn H. Uesugi (collectively, “Counsel”); Counsel
Maria Ann Carmichael did not appear. (Id.) Appearing on behalf of Defendants
were Dennis K. Ferm, Malia E. Schreck, and Kathy K. Higham. (Id.) The Court
heard Counsel’s Motion to Withdraw out of the presence of Counsel for
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Defendants, under seal. After careful consideration of the Motion, the supporting
and opposing memoranda, and the arguments of counsel, the Court hereby
GRANTS IN PART AND DENIES IN PART Counsel’s Motion to Withdraw, for
the reasons set forth below.
BACKGROUND FACTS
On November 7, 2012, Plaintiff Thomas Lauro (“Plaintiff”), also
known as Thomas Reyes, filed a Complaint in State Court against Defendants State
of Hawaii (“State”), Department of Public Safety, Halawa Correctional Facility,
Waiawa Correctional Facility, and various health care providers employed by the
State (collectively, “Defendants”). (See generally, Doc. 1-1.) On November 29,
2012, Defendants removed the case to this Court. (Doc. 1.) Nearly two years
later, on August 29, 2014, Plaintiff filed an Amended Complaint alleging the
following causes of action: (1) Negligence/Medical Negligence or Malpractice;
(2) Respondeat Superior; (3) Breach of Warranties; (4) Breach of Duty to Provide
Access to Health Care; (5) Breach of Duty to Establish Procedures to Ensure a
Safe and Sanitary Environment; (6) Negligent and/or Intentional Infliction of
Emotional Distress; (7) Lack of Informed Consent; (8) Punitive/Exemplary
Damages; (9) Deliberate Indifference; (10) Gross Negligence; (11) Negligent
Hiring, Supervision, Training and Retention by State Defendants; and (12)
Retaliation. (Doc. 84-1.) Plaintiff’s claims stem from Defendants’ alleged failure
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to properly diagnose and treat Plaintiff’s medical condition while Plaintiff was
housed as an inmate in the State’s facilities, which resulted in serious and life-long
complications for Plaintiff.
On July 29, 2015, Plaintiff’s Counsel filed their Motion to Withdraw,
which is currently pending before the Court. (Doc. 137.) Michael Jay Green and
Earl I. Anzai seek to withdraw on the grounds that
(1) counsel is having to take positions and/or pursue objectives that
counsel considers impossible, repugnant or impudent, and (2)
counsel’s representation has been rendered unreasonably difficult
and/or impossible by client’s conduct and (3) movants can no longer
provide effective counsel for Plaintiff.
(Doc. 137 at 2.) Counsel Glenn H. Uesugi moves to withdraw, in addition to the
above stated reasons, on the basis that:
[Uesugi] specifically told Plaintiff that he was making special
appearances in this case only, that he did not make a formal written
appearance, nor did he make an appearance in court . . . on behalf of
Plaintiff and that Plaintiff does not object to [his] withdrawal.
(Id.) Uesugi states that a majority of his involvement in Plaintiff’s case was to
prepare for Plaintiff’s parole hearing, which occurred in July 2015, and that he has
not made an appearance in this case. (Id. at 3.) Counsel Maria Ann Carmichael
moves to withdraw on the basis that “she took a position as in house counsel for a
company and can no longer actively participate in this case.” (Id.)
Defendants do not oppose Counsel’s Motion to Withdraw. (See Docs.
146, 149, 152.) On August 6, 2015, Plaintiff filed his opposition to Counsel’s
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Motion to Withdraw. (Doc. 154.) In relevant part, Plaintiff argues that Counsel’s
sole reason for seeking to withdraw from his case, twelve weeks before trial, is due
to Plaintiff’s refusal to accept what he believes is Defendants’ unreasonable offer
to settle. (Doc. 154 at 2-3.) Plaintiff also maintains that if Counsel is allowed to
withdraw, he will be left with “astronomical legal costs and fees of which no other
attorney will be willing to assume or accept if he/she takes this case only 12 weeks
before trial,” and thus, Plaintiff would effectively be left without the assistance of
counsel in this case. (Id.)
This matter came on for hearing on August 10, 2015. (Doc. 158.) For
the reasons discussed below, the Court GRANTS IN PART AND DENIES IN
PART Counsel’s Motion to Withdraw. The Motion is GRANTED with respect to
Counsel Maria Ann Carmichael and DENIED as to Michael Jay Green, Earl I.
Anzai, and Glenn H. Uesugi.
DISCUSSION
Local Rule 83.6(b) provides, in relevant part, that “[n]o attorney will
be permitted to be substituted as attorney of record in any pending action without
leave of court. An attorney who has appeared in a case may seek to withdraw on
motion showing good cause.” In determining whether there is good cause for
withdrawal, courts have considered whether the client is cooperative and willing to
assist the attorney in the case. Christian v. Frank, Civ. No. 04-00743 DAE-LEK,
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2011 WL 801966, at *1 (D. Haw. 2011) (citing United States v. Cole, 988 F.2d
681, 683 (7th Cir. 1993) (stating that denying a motion to withdraw is not an abuse
of discretion unless there is a conflict of interest or irreconcilable conflict between
the attorney and the client that is so severe that it results in a complete lack of
communication preventing an adequate defense)). Even where good cause exists,
however, other factors take precedence. Christian, 2011 WL 801966, at *1
(citation omitted). For example, this Court may consider the extent to which
withdrawal will disrupt the case; how long the case has been pending; the financial
burden the client will face in finding new counsel; prejudice to other parties; and
whether withdrawal will harm the administration of justice. Finazzo v. Hawaiian
Airlines, Civ. No. 05-00525 JMS-LEK, 2007 WL 1201694, at *4 (D. Haw. 2007)
(citations omitted).
With regard to Maria Ann Carmichael (Ms. Carmichael), the Court
finds good cause for her withdrawal. Ms. Carmichael is no longer in private
practice, and therefore, she no longer has the ability to actively represent Plaintiff
in this matter. Moreover, Plaintiff stated at the hearing on Counsel’s Motion to
Withdraw that he does not object to Ms. Carmichael’s withdrawal from this case.
Accordingly, for good cause shown, the Court hereby GRANTS Counsel’s Motion
to Withdraw as it relates to Ms. Carmichael.
With regard to Counsel Michael Jay Green (“Mr. Green”) and Earl I.
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Anzai (“Mr. Anzai”), the Court finds that the principle difference between Plaintiff
and Counsel is regarding how to resolve this case in terms of settlement. Attorneys
have an ethical obligation to put forth their best efforts to zealously represent their
clients, regardless of any difference in opinion regarding settlement. The Court
finds that Plaintiff has a serious and complicated medical malpractice case, which
may have merit, and this matter has been pending for nearly three years. The
Court further notes that Plaintiff has a contingency fee agreement with Counsel,
and therefore, there is nothing to suggest that Plaintiff will be unable to pay
Counsel’s fees or that Counsel will otherwise be prejudiced by the continued
representation. On the other hand, if Counsel is allowed to withdraw from this
case, a mere twelve weeks from trial, Plaintiff will face great financial difficulty in
finding replacement counsel, which is very likely to disrupt the case from
proceeding. Moreover, Plaintiff stated at the hearing that he is willing to cooperate
and work with Counsel in this matter. Accordingly, the Court is not convinced that
there is a breakdown in the attorney client relationship such that would warrant
Counsel’s withdrawal. Instead, if Counsel’s Motion is granted, the Court finds that
withdrawal will seriously harm the administration of justice in this case.
Therefore, in the interest of justice and for the reasons discussed above, the Court
hereby DENIES Counsel’s Motion to Withdraw as it relates to Mr. Green and Mr.
Anzai.
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Lastly, with regard to Glenn H. Uesugi (“Mr. Uesugi”), the Court
notes that Mr. Uesugi has not filed a Notice of Appearance in this case.
Nevertheless, Mr. Uesugi has made multiple special appearances in this matter on
behalf of Plaintiff, and has represented to the Court that he is assisting Mr. Green
in this matter. Mr. Uesugi further admitted that he participated in Plaintiff’s
deposition, met with Plaintiff multiple times, and assisted Plaintiff at his parole
hearing. The Court also notes that Mr. Uesugi participated in a Settlement
Conference in this case, on behalf of Plaintiff, before this Court. (See Doc. 148.)
Accordingly, for the same reasons stated above as to Mr. Green and Mr. Anzai, the
Court hereby DENIES WITHOUT PREJUDICE Counsel’s Motion to Withdraw as
it relates to Mr. Uesugi.
CONCLUSION
Based on the foregoing, the Court GRANTS IN PART AND DENIES
IN PART Plaintiff’s Attorneys’ Motion to Withdraw as Counsel.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 14, 2015.
/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge
Lauro v. State of Hawaii, et al., Civ. No. 12-00637 DKW-BMK; ORDER GRANTING IN
PART AND DENYING IN PART PLAINTIFF’S ATTORNEYS’ MOTION TO WITHDRAW
AS COUNSEL FOR PLAINTIFF THOMAS LAURO.
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