Marshall et al v. Billings Clinic
ORDER granting Badaruddin's 42 Motion to Withdraw as Attorney. The current scheduling order and deadlines therein are VACATED. On or before May 16, 2016, Marshall must file a notice with the Court either advising that she hasretained new c ounsel or that she intends to proceed pro se. Failure to respond may result in dismissal of this action for failure to prosecute. If new counsel is retained, counsel must file an appropriate notice of appearance. Signed by Magistrate Judge Carolyn S Ostby on 4/4/2016. (JDR, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
ANNE B. MARSHALL,
SHANDOR S. BADARUDDIN
THE BILLINGS CLINIC, a
Before the Court is a motion by attorney Shandor S. Badaruddin
(“Badaruddin”) to withdraw as counsel for Plaintiff Anne B. Marshall
(“Marshall”). Mtn. to Withdraw (ECF No. 42). For the reasons that
follow, the Court will grant the motion, vacate the current scheduling
order, and afford Marshall additional time to either retain new counsel
or appear pro se.
On March 10, 2016, Badaruddin filed a motion to withdraw as
Marshall’s counsel. Mtn. to Withdraw (ECF No. 42). Badaruddin
represented in his motion that Defendant The Billings Clinic (“Billings
Clinic”) does not object to his motion. Id. at 1. He also advised the
Court, however, that Marshall did not consent to his withdrawal as her
counsel. Id. The Court issued an Order the same day affording
Marshall until March 24, 2016, to file a response to Badaruddin’s
motion. Order (ECF No. 45) at 1. To date, Marshall has not filed a
On March 18, 2016, however, attorney Bruce R. Elworthy
(“Elworthy”) filed a response to Badaruddin’s motion, as well as a
separate brief in response to the motion. See ECF Nos. 46 and 48.1
Elworthy is Marshall’s spouse. See Pltfs’ Prelim. Pretrial Stmt. (ECF
No. 12) at 4, 15. He originally was a named plaintiff in this action.
Cmplt. (ECF No. 1) at 1. After amendment of the Complaint filed on
November 6, 2014, Elworthy no longer is a party to the action. See
First Amended Cmplt. (ECF No. 16) at 1.
On January 27, 2015, Elworthy filed a “Notice of Limited
Appearance” in which he represents that he is appearing as counsel for
Marshall “in the limited capacity of representing [Marshall] in matters
regarding the assertion of privileges and to defend any claim of
Both Badaruddin and Elworthy also filed ex parte affidavits.
ECF Nos. 43 (Badaruddin’s ex parte affidavit) and 47 (Elworthy’s ex
subrogation.” Notice of Limited Appearance (ECF No. 18) at 1. Here,
because Badaruddin’s motion to withdraw implicates neither the
assertion of privileges nor defense of any claim of subrogation,
Elworthy’s response is improper. He is not Marshal’s counsel of record
for purposes of the pending motion. Consequently, Marshall has failed
to properly respond to Badaruddin’s motion.
This Court’s Local Rules require an attorney whose withdrawal
would leave a client without representation to obtain the Court’s leave.
See D. Mont. L.R. 83.3(b). The Local Rules also provide that attorneys
are subject to the American Bar Association’s Model Rules of
Professional Conduct and the Montana Rules of Professional Conduct.
D. Mont. L.R. 83.2(a). The decision to grant or deny a motion to
withdraw is within the Court’s discretion. Arch Ins. Co. v. Sierra
Equipment Rental, Inc., 2016 WL 829208, *1 (E.D. Cal., Mar. 3, 2016)
(citing McNally v. Eye Dog Found. for the Blind, Inc., 2011 WL
1087117, *1 (E.D. Cal., Mar. 24, 2011) (citing Huntington Learning
Ctrs., Inc. v. Educ. Gateway, Inc., 2009 WL 2337863, at * 1 (C.D. Cal.,
July 28, 2009) and Washington v. Sherwin Real Estate, 694 F.2d 1081,
1087 (7th Cir. 1982))).
“District courts in [the Ninth Circuit] have considered several
factors when evaluating a motion to withdraw, including the reason for
withdrawal, prejudice to the client, prejudice to the other litigants,
harm to the administration of justice, and possible delay.” Id. (citing
Deal v. Countrywide Home Loans, 2010 WL 3702459, at *2 (N.D. Cal.,
Sept. 15, 2010); CE Resource, Inc. v. Magellan Group, LLC, 2009 WL
3367489, at *2 (E.D. Cal., Oct. 14, 2009); and Beard v. Shuttermart of
Cal., Inc., 2008 WL 410694, at *2 (S.D. Cal., Feb. 13, 2008)).
In considering the foregoing factors, the Court concludes that it is
appropriate to allow Badaruddin to withdraw. First, the Court has
carefully considered the reasons Badaruddin has advanced for seeking
the Court’s leave to withdraw, and finds them sufficient to allow him to
withdraw under Rule 1.16(b) of the Montana Rules of Professional
Second, the Court concludes that any prejudice that Marshall may
suffer if Badaruddin is permitted to withdraw as her counsel will be
minimal and, in any event, will not outweigh the other factors weighing
in favor of permitting withdrawal. As noted, Marshall did not respond
to Badaruddin’s motion. And, even considering Elworthy’s response on
her behalf, it is apparent to the Court that Badaruddin’s continued
representation of Marshall would not be in either’s best interest, nor
would it materially advance resolution of this action.
Third, granting Badaruddin’s motion would not be prejudicial to
the other party to this action. As noted above, Billings Clinic does not
object to Badaruddin’s motion to withdraw.
Fourth, granting Badaruddin’s motion would not prove
detrimental to the administration of justice, nor would it result in
undue delay. This matter has been pending for nearly two years –
since July 25, 2014. Cmplt. (ECF No. 1). Although a scheduling order
is in effect, the discovery and motions deadlines it imposes are several
months hence. See Order Granting Joint Unopposed Mtn. to Amend
Scheduling Order (ECF No. 40) at 2 (setting September 26, 2016
discovery deadline and October 10, 2016 motions deadline). No trial
date or associated deadlines have yet been set. Affording Marshall a
reasonable amount of time, as discussed below, to retain new counsel or
appear pro se will not materially delay this matter further. Also,
briefly vacating the current schedule until a new schedule can be
implemented once Marshall retains new counsel or appears pro so
similarly will not unduly delay resolution of this matter.
Balancing consideration of the foregoing factors, the Court
concludes that it is appropriate to grant Badaruddin’s motion to
withdraw as Marshall’s counsel.
Respecting further management of this action, the Court is
mindful of its goal of securing a just, speedy, and inexpensive
determination in all cases before it. See Fed. R. Civ. P. 1. But the
Court also must strive to afford Marshall adequate time to retain new
counsel, should she wish to do so. In balancing these obligations, the
Court concludes that it is appropriate to vacate the current schedule, as
set forth below, and to impose a deadline upon Marshall for retaining
new counsel or informing the Court that she will proceed pro se.
Based on the foregoing,
IT IS ORDERED that Badaruddin’s motion to withdraw as
counsel for Marshall (ECF No. 42) is GRANTED. The Montana Rules
of Professional Conduct govern counsel’s responsibility with respect to
surrendering papers and property to which Marshall is entitled. Mont.
R. Prof. Conduct 1.16.
IT IS FURTHER ORDERED that the current scheduling order
(ECF No. 40) and deadlines therein are VACATED.
IT IS FURTHER ORDERED that, on or before May 16, 2016,
Marshall must file a notice with the Court either advising that she has
retained new counsel or that she intends to proceed pro se. Failure to
respond may result in dismissal of this action for failure to prosecute.
If new counsel is retained, counsel must file an appropriate notice of
appearance. As soon as practicable after June 3, 2016, the Court will
set a status conference to put in place a schedule for further
DATED this 4th day of April, 2016.
/s/ Carolyn S. Ostby
United States Magistrate Judge
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