Phantom Ventures LLC v. DePriest et al

Filing 61

Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER ALLOWING 51 Motion for Leave to Withdraw Its Appearance As Counsel For Plaintiff. Plaintiff's counsel is directed to serve a copy of this Memorandum & Order on Phantom Ventures and to file a certificate of service with the court. See Attached Order.(DaSilva, Carolina)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
PHANTOM VENTURES LLC,

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Plaintiff,
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v.
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JOHN DEPRIEST, JANICE TATARKA, *
ARTHUR ARSENAULT, JOSEPH
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MAHONEY, MARILYN VEGA-TORRES, *
and THE CITY OF CHELSEA,
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Defendants.
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Civil Action No. 15-cv-13865-IT

MEMORANDUM & ORDER
March 27, 2017
TALWANI, D.J.
On March 7, 2017, the court granted in part and denied in part Plaintiff Phantom
Ventures LLC’s (“Phantom Ventures”) Motion for Partial Summary Judgment [#22], granted in
part and denied in part Defendants’ Cross-Motion for Summary Judgment [#29], and remanded
the matter to the City of Chelsea Zoning Board of Appeals (“Zoning Board”) for further
consideration of Plaintiff’s permit application. Mem. & Order [#56]. On March 8, 2017, this
court ordered Plaintiff’s counsel to show cause why their Motion for Leave to Withdraw Its
Appearance As Counsel For Plaintiff (“Mot. Leave Withdraw”) [#51] should not be denied as
moot. Order Show Cause [#59]. Plaintiff’s counsel filed their Memorandum in Response to
Order to Show Cause (“Mem. Response”) [#60] on March 15, 2017.
I.

Motion for Leave to Withdraw
Massachusetts Rule of Professional Conduct 1.16(b)(7) and Local Rule 83.5.2(c)(2)

permit withdrawal of an attorney’s appearance upon a showing of “good cause.” Plaintiff’s
counsel articulates several reasons for their request to withdraw their appearance. Phantom

Ventures, through its manager Konstantinos Georgopoulos, opposes the motion to withdraw only
“on the grounds that it may prejudice, or negatively affect, our case” and because Phantom
Ventures “is keen to see this case through to verdict.” Opp’n Mot. Leave Withdraw [#53].
Plaintiff’s counsel asserts that their withdrawal is allowed under Massachusetts Rules of
Professional Conduct 1.16(b)(5) and (b)(6) because Phantom Ventures “has failed to fulfill its
payment obligations,” Plaintiff’s counsel “warned Phantom [Ventures]’s managers of a motion
to withdraw if they did not hire replacement counsel,” and “will result in an unreasonable
financial burden.” Mot. Leave Withdraw 5-6. Counsel assert, without opposition, that they have
been forced “to work without payment for eight months, without any commitment to pay bills
that have been outstanding for even longer, and without any commitment to pay future legal
bills.” Id. at 6.
A client’s failure to pay attorney’s fees may support the withdrawal of counsel, although
withdrawal “will not necessarily be appropriate in all . . . circumstances.” Hammond v. T.J. Litle
& Co., 809 F. Supp. 156, 161 (D. Mass. 1992). A court may also consider “(1) the amount of
work performed and paid for in comparison with the work remaining, (2) fees paid to date, and
(3) the likely effect on the client.” Id. Here, Plaintiff’s counsel has worked without pay for eight
months, prevailing in substantial part on Plaintiff’s claim, and as of December 31, 2016, was
owed over $46,000 in legal fees. See Aff. Thomas S. Fitzpatrick Supp. Mot. Leave Withdraw
(“Fitzpatrick Aff.”) ¶ 12 [#52]. Although Plaintiff may prefer retaining current counsel who are
familiar with the case, the court finds neither a basis to impose a further obligation for counsel to
represent Plaintiff without payment nor any prejudice in allowing the withdrawal at this time,
where there are no pending motions, no dispute as to the terms of the engagement letter, and no
disagreement that the bill remains unpaid.

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Plaintiff’s counsel also asserts that their withdrawal is allowed under Massachusetts Rule
of Professional Conduct 1.16(b)(6) because representation “has been rendered unnecessarily
difficult” by Phantom Ventures’ conduct. Mot. Leave Withdraw 5 [#51]. Plaintiff’s counsel
states that Phantom Ventures “is extremely hostile to, and critical of” counsel’s firm, causing “an
irreversible rupture of the attorney-client relationship,” a rupture which Phantom Ventures does
not attempt to dispute. Id. at 4-5. Moreover, Plaintiff’s counsel advised Phantom Ventures’
managers that they would be forced to move to withdraw more than five months ago. Fitzpatrick
Aff. ¶ 7 [#52]. Under these circumstances as well, Plaintiff’s counsel has demonstrated good
cause for their withdrawal of their appearance.
Accordingly, the Motion for Leave to Withdraw Its Appearance As Counsel For Plaintiff
[#51] is ALLOWED.
II.

Further Proceedings
Phantom Ventures cannot proceed in this court without counsel. See Local Rule

83.5.5(c). Plaintiff’s counsel, in explaining why the Motion for Leave to Withdraw Its
Appearance As Counsel For Plaintiff [#51] is not moot, stated various matters that may still need
to be addressed. Mem. Response 3-5 [#60]. None of those matters is currently pending before the
court, as the case has been remanded to the Zoning Board for further consideration of Phantom
Ventures’ permit application. Mem. & Order [#56]. Accordingly, the court will administratively
close the case while the Zoning Board undertakes this further consideration and Phantom
Ventures obtains new counsel. This case closing is without prejudice to either side moving to
reopen the case for further proceedings through their or its counsel of record.
III.

Conclusion
For the foregoing reasons, Plaintiff’s counsel’s Motion for Leave to Withdraw Its

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Appearance As Counsel For Plaintiff [#51] is ALLOWED. Plaintiff’s counsel is directed to serve
a copy of this Memorandum & Order on Phantom Ventures and to file a certificate of service
with the court. Upon filing of the certificate of service, the clerk shall administratively close the
case.
IT IS SO ORDERED.
Date: March 27, 2017

/s/ Indira Talwani
United States District Judge

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