Nibeck v. Marion Police Department et al
ORDER granting 47 Motion to Withdraw as Attorney for Attorney Blake Parker filed by Jerry L Nibeck; granting 48 Motion to Stay re 43 Motion for Summary Judgment. Plaintiff will have until 10/30/2017 to retain new counsel and have that at torney enter his or her appearance. If no attorney enters an appearance on behalf of plaintiff by that deadline, the Court will consider plaintiff to be proceeding pro se in this matter. Plaintiff shall file any resistance to the pending 43 Motion for Summary Judgment no later than 11/30/2017. The Court will set a new trial date and trial-related deadlines in a separate order. Signed by Chief Magistrate Judge CJ Williams on 9/27/2017 (copy w/NEF mailed to Plt). (skm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
JERRY L. NIBECK,
ADAM CIRKL and MARK KJORMOE,
This matter is before the Court pursuant to Plaintiff’s Motion to Withdraw (Doc.
47) and Motion to Stay (Doc. 48) the time to respond to Defendants’ Motion for Summary
Judgment (Doc. 43). For the reasons that follow, the Court grants plaintiff’s motions.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff filed this suit pro se on June 10, 2016. (Doc. 1). On August 29, 2016,
plaintiff filed a pro se motion for appointment of counsel. (Doc. 19). On September 8,
2016, the Court entered an order denying that motion. (Doc. 21). On November 16,
2016, attorney Blake Parker entered his appearance on behalf of plaintiff. (Doc. 29).
Trial is scheduled for December 18, 2017. (Doc. 34).
On August 17, 2017, defendants filed a Motion for Summary Judgment. (Doc.
43). Plaintiff’s resistance was due on September 7, 2017. LR 7(e) (a resistance to a
motion for summary judgment is due within twenty-one days). Plaintiff filed a pro se
resistance to the Motion for Summary Judgment on August 28, 2017. (Doc. 46).
On August 29, 2017, counsel for plaintiff filed both a Motion to Withdraw, citing
irreconcilable differences and urging that good cause exists to allow counsel to withdraw
(Doc. 47-1), and a Motion to Stay, seeking to stay the time for filing a resistance pending
resolution of the Motion to Withdraw (Doc. 48). As support for the Motion to Withdraw,
counsel turns to the pro se resistance plaintiff filed in which plaintiff alleges his own
counsel colluded with counsel for defendants and threatened to drop plaintiff’s case.
(Doc. 47-1). Defendants filed a resistance to both motions. (Doc. 49). Plaintiff also
filed a pro se resistance to the motion to withdraw. (Doc. 50).
On September 26, 2017, the Court held a hearing on these pending motions.
Plaintiff’s counsel indicated that plaintiff’s conduct in filing documents pro se, and the
allegations plaintiff has made against plaintiff’s counsel, along with other matters that
plaintiff’s counsel could not reveal without breaching the attorney-client privilege, has
resulted in a breakdown in the attorney-client relationship. Plaintiff’s counsel indicated
that he believed he had an ethical obligation to withdraw as counsel. Defendants indicated
they did not dispute the factual issues giving rise to the attorney-client conflict or the
breakdown in that relationship. Nevertheless, defendants objected to the withdrawal and
the extension of any deadline for plaintiff to respond to the pending motion for summary
judgment. To the credit of defense counsel, defendants conceded that there was no real
prejudice to a further extension of the deadline other than the general right a party has to
the speedy resolution of a legal dispute, as reflected in Rule 1 of the Federal Rules of
Civil Procedure. Plaintiff indicated an intent to hire new counsel if his attorney was
allowed to withdraw.
Local Rule 83(d)(6) provides that “[a] lawyer who has appeared in a case and
desires to withdraw from representation of a party is not relieved of his or her duties to
the court, to the client, or to opposing counsel until” either (A) new counsel enters an
appearance or “(B) the withdrawing lawyer has filed a motion withdraw . . . and has
received leave of court to withdraw for good cause shown.” LR 83(d)(6). Pursuant to
the Iowa Rules of Professional Conduct, an attorney “may withdraw from representing a
client” upon a showing of “good cause.” Iowa Rule 32:1.16(b)(7). Here, plaintiff’s
insistence on filing pro se pleadings while represented by his attorney, combined with the
nature of the allegations plaintiff has made against his attorney (suggesting his attorney
is in collusion with defendants), provides good cause for plaintiff’s counsel to withdraw.
Plaintiff’s conduct has placed his attorney in a position where the attorney can no longer
ethically represent plaintiff and has created irreconcilable differences between plaintiff
and his attorney. Accordingly, the Court grants plaintiff’s counsel’s motion to withdraw.
The Court will now turn to plaintiff’s motion to stay or extend the deadline for
responding to the pending motion for summary judgment. First, plaintiff’s attempted pro
se resistance to the motion for summary judgment will not be recognized by the Court
because plaintiff was represented by counsel when it was filed. United States v. Hunter,
770 F.3d 740, 746 (8th Cir. 2014) (“It has long been Eighth Circuit policy that when a
party is represented by counsel, we will not accept pro se briefs for filing.” (citations and
internal quotation marks omitted)). Plaintiff’s pro se filing also failed to comply with
Local Rule 56. Second, the Court is sympathetic to defendants’ desire for a speedy
resolution of this lawsuit. This Court takes very seriously the mandate of Rule 1 of the
Federal Rules of Civil Procedure and laments the additional cost in time and money
occasioned by delays in the resolution of civil cases. Nevertheless, the Court cannot find
that defendants would be seriously prejudiced by a short extension of time to allow
plaintiff to retain new counsel and to file a resistance to the motion for summary
judgment. In contrast, failing to provide plaintiff more time to file a resistance to a
dispositive motion, under the circumstances, would cause him obvious and serious
prejudice. Accordingly, the Court grants plaintiff’s motion to stay. (Doc. 48).
For the reasons stated above, the Court grants plaintiff’s counsel’s motion to
withdraw (Doc. 47) and motion to stay (Doc. 48). Plaintiff will have until October 30,
2017, to retain new counsel and have that attorney enter his or her appearance. If no
attorney enters an appearance on behalf of plaintiff by that deadline, the Court will
consider plaintiff to be proceeding pro se in this matter. Plaintiff shall file any resistance
to the pending motion for summary judgment no later than November 30, 2017. The
Court reminds plaintiff that any resistance filed by plaintiff must be in full compliance
with Local Rule 56. The Court will set a new trial date and trial-related deadlines in a
IT IS SO ORDERED this 27th day of September, 2017.
Chief United States Magistrate Judge
Northern District of Iowa
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