Tanksley et al v. Bay View Law Group P.C. et al

Filing 65

MEMORANDUM AND ORDER granting in part 59 Motion to Withdraw as Attorney as to Bay View Law Group, P.C. and denying in part as to Jedidiah N. Thurkettle. Signed by Magistrate Judge Teresa J. James on 2/27/14. (hw) Modified on 2/27/2014, to indicate the correct parties. (mh)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WESLEY TANKSLEY, et al.,
Plaintiffs,
vs.
BAY VIEW LAW GROUP, P.C., et al.,
Defendants.

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Case No. 12-cv-1149-CM-TJJ

MEMORANDUM AND ORDER
The Court has before it the Motion to Withdraw as Counsel (ECF No. 59) filed by
attorneys Camron L. Hoorfar and Lauren Hill of the Law Office of Camron Hoorfar, P.C.
Counsel request that they be allowed to withdraw from this action with respect to the
representation of Defendants Bay View Law Group P.C. and Jedediah N. Thurkettle. As the
relief requested would leave the clients without counsel, movants must satisfy the requirements
of D. Kan. Rule 83.5.5(a). No response or opposition was filed. Upon review, the Court
concludes that the Motion should be granted as to Defendant Bay View Law Group P.C. and
denied as to Defendant Jedediah N. Thurkettle.
Regarding Defendant Bay View Law Group P.C. (“Bay View”), pursuant to Rule
83.5.5(a), the Court finds that the motion sets forth good cause for the withdrawal, in that Bay
View has refused to communicate with its attorneys since December 30, 2013 and has failed to
pay its outstanding attorney fees. The motion also includes the admonition to the client that it
will be personally responsible for complying with all orders of the court and time limitations
established by the rules of procedure or court order, along with a copy of the Scheduling Order
with all pending hearing dates and deadlines. Further, the motion includes Bay View’s last
known mailing address and telephone number.

Counsel has also filed an Affidavit (ECF No. 60) stating that counsel sent copies of the
motion via certified mail, email, and first class mail to Bay View. Further, the affidavit includes
a copy of the certified mail delivery confirmation notice to Bay View. The Court therefore finds
that counsel has made a satisfactory showing, as required by D. Kan. Rule 83.5.5(a)(4), that
counsel has made a reasonable effort to serve the motion to Bay View, and that Bay View
received the motion. The Court also finds that the other requirements of Rule 83.5.5(a) have
been met. The Court will therefore grant the motion as to Bay View as uncontested and for good
cause shown.
As for Defendant Jedediah N. Thurkettle, the Court finds the motion should be denied at
this time for insufficient proof of service. Per D. Kan. Rule 83.5.5(a)(2), a motion to withdraw
must be served on the client “either by personal service or by certified mail, with return receipt
requested.” Further, movant must file either proof of personal service of the motion or the
certified mail receipt, signed by the client.1 In the alternative, movant may prove service by
filing “an affidavit indicating that the client received a copy of the motion.”2
A review of the motion and affidavit shows that counsel did not attempt personal service
on Mr. Thurkettle. Instead, counsel attempted service via certified mail. Counsel has not,
however, filed a certified mail receipt signed by Mr. Thurkettle, nor has counsel filed any notice
confirming delivery. In addition, although counsel indicate that they sent the motion to Mr.
Thurkettle via email and first class mail, they do not indicate that Mr. Thurkettle actually
received the motion. As a result, the motion fails to show either proof of service on or receipt by
Mr. Thurkettle and must therefore be denied with respect to Mr. Thurkettle.

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D. Kan. Rule 83.5.5(a)(4)(A).
D. Kan. Rule 83.5.5(a)(4)(B).

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IT IS THEREFORE ORDERED that the Motion to Withdraw as Counsel (ECF No.
59) is granted as to Defendant Bay View Law Group P.C. as uncontested and for good cause
shown. Attorneys Camron L. Hoorfar and Lauren Hill of the Law Office of Camron Hoorfar,
P.C. are authorized to withdraw and are hereby withdrawn from this action with respect to the
representation of Defendant Bay View Law Group P.C.
IT IS FURTHER ORDERED that the Motion to Withdraw as Counsel (ECF No. 59) is
denied as to Defendant Jedediah N. Thurkettle for failure to show either proof of service of the
motion on the client or that the client received a copy of the motion. This denial is without
prejudice to counsel refiling the motion upon service to the client.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 27th day of February, 2014.

s/ Teresa J. James
Teresa J. James
United States Magistrate Judge

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