D'OTTAVIO v. SLACK TECHNOLOGIES

Filing 45

MEMORANDUM,OPINION & ORDER Granting Plaintiff's counsel 43 Motion to Withdraw, etc. Signed by Judge Noel L. Hillman on 7/3/2019. (rss, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

GINO D'OTTAVIO,
individually and on behalf of
all others similarly
situated,
Plaintiff,

1:18-cv-09082-NLH-AMD
MEMORANDUM
OPINION & ORDER

v.
SLACK TECHNOLOGIES,
Defendant.

APPEARANCES:
ARI HILLEL MARCUS
YITZCHAK ZELMAN
MARCUS ZELMAN, LLC
701 COOKMAN AVENUE
SUITE 300
ASBURY PARK, NJ 07712
On behalf of Plaintiff
PAUL JEFFREY BOND
MARK S. MELODIA
HOLLAND & KNIGHT LLP
2929 ARCH STREET
SUITE 800
PHILADELPHIA, PA 19104
On behalf of Defendant
HILLMAN, District Judge
WHEREAS, Plaintiff, Gino D’Ottavio, filed a putative class
action alleging that Defendant, Slack Technologies, transmitted
dozens of unsolicited commercial text messages to Plaintiff on
Plaintiff’s cellular telephone, in violation of the Telephone

Consumer Protection Act(“TCPA”), 47 U.S.C. § 227 et seq., thereby
invading Plaintiff’s privacy; and
WHEREAS, Slack filed an answer to Plaintiff’s complaint
denying his claims and lodging a counterclaim, claiming that
Plaintiff abused a feature on Slack’s website to deliberately
send himself the texts at issue; and
WHEREAS, on April 15, 2019, the Court granted Plaintiff’s
motion to dismiss his claims against Slack, but denied without
prejudice Slack’s motion for sanctions, as well as Plaintiff’s
counsel’s motion to withdraw as counsel (Docket No. 36, 37); and
WHEREAS, Slack’s counterclaim remains pending for separate
adjudication; 1 and

1

The basis for subject matter jurisdiction over Plaintiff’s
complaint, which asserted a violation of federal law, is 28
U.S.C. § 1331. Because those claims have been dismissed, the
Court must determine whether it may exercise subject matter
jurisdiction over Slack’s counterclaims. See Barefoot
Architect, Inc. v. Bunge, 632 F.3d 822, 836 (3d Cir. 2011)
(other citation omitted) (explaining that “[g]enerally speaking,
the dismissal of the complaint will not preclude adjudication of
a counterclaim over which the court has an independent basis of
jurisdiction”); id. (citing Fed. R. Civ. P. 13(a)) (further
explaining had the defendants filed first, they could have
invoked § 1332 to bring their state law claims in federal court
in the first instance, and the plaintiff could have filed its
causes of action as counterclaims, but as things actually
transpired, the defendants were forced to file their state law
claims as compulsory counterclaims since they arose out of the
same “transaction or occurrence” as the plaintiff’s complaint).
Slack’s counterclaims arise under state law and arise out of the
same transaction or occurrence as Plaintiff’s claims. See id.
at 836 n.9 (citations omitted) (explaining that to be deemed
part of the same “transaction or occurrence” for Rule 13(a)
2

WHEREAS, the Court directed Plaintiff to file a letter on
the docket, either through his current counsel or independently,
indicating whether: (1) he consents to the withdrawal of his
lawyers; (2) he understands that he is still subject to Slack’s
counterclaims and request for sanctions against him; and (3) he
wishes to represent himself pro se or obtain another attorney to
represent him (Docket No. 36 at 8); and
WHEREAS, the Court directed counsel for Plaintiff to provide
a copy of the Opinion and accompanying Order to Plaintiff and
file a certification of service to document that they did so; and
WHEREAS, Plaintiff’s counsel complied with the Court’s Order
(Docket No. 40, 42), and counsel has refiled their motion to
withdraw (Docket No. 43); and
WHEREAS, Plaintiff’s counsel relates that after over 20
attempts to communicate with Plaintiff over the course of several
months to no avail, counsel finally communicated with Plaintiff,
and Plaintiff related:
1) “I do not consent to your motion to withdraw as counsel”;
2) “I understand the nature of the counter suit”;
3) “If Ari Marcus if permitted to withdraw I presently do
not know how I will be proceeding.”
purposes, a claim need only bear a logical relationship to the
subject matter of the complaint). It appears that subject
matter jurisdiction may continue under 28 U.S.C. § 1332(a)
because Plaintiff is a citizen of New Jersey and Slack is a
citizen of California. (Docket No. 1 at 3, Docket No. 6 at 11.)
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(Docket No. 42); and
WHEREAS, Slack filed a letter stating that it takes no
position on Plaintiff’s counsel’s motion to withdraw (Docket No.
44); and
WHEREAS, the standards for assessing whether an attorney may
be relieved of his representation of his client in a pending case
are set forth in Local Civil Rule 102.1 (“Unless other counsel is
substituted, no attorney may withdraw an appearance except by
leave of Court.”) and Rule of Professional Conduct 1.16, which
requires the Court to consider four criteria: (1) the reason
withdrawal is sought; (2) the prejudice withdrawal may cause to
other litigants; (3) the harm withdrawal may cause to the
administration of justice; and (4) the degree to which withdrawal
may delay the resolution of the case, U.S. ex rel. Cherry Hill
Convalescent, Ctr., Inc. v. Healthcare Rehab Sys., Inc., 994 F.
Supp. 244, 252–53 (D.N.J. 1997); and
WHEREAS, the Court finds that good cause exists to relieve
counsel of their obligation to represent Plaintiff: (1) even
though Plaintiff has stated to his lawyers that he does not
consent to their withdrawal, Plaintiff has failed to have any
meaningful communication with his counsel since September 2018,
and has not contacted the Court with regard to any of his
concerns, even when he was encouraged to do so by the Court’s
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prior Orders; (2) Plaintiff understands that Slack’s
counterclaims remain pending against him, and that Slack’s motion
for sanctions against him is not mooted by the dismissal of his
complaint against Slack; and (3) Plaintiff has consented to the
dismissal of his claims against Slack, and Slack’s counterclaims
against Plaintiff remain in their infancy; and
WHEREAS, Plaintiff’s refusal to consent to his counsel’s
withdrawal but otherwise fail to communicate with counsel or the
Court presents an untenable position for the parties and the
Court and frustrates, rather than promotes, the orderly
adjudication of this matter;
THEREFORE,
IT IS on this

3rd

day of

July

, 2019

ORDERED that Plaintiff’s counsel’s MOTION to Withdraw [43]
be, and the same hereby is, GRANTED; and it is further
ORDERED that within 20 days of the date of this Order,
Plaintiff shall either (1) enter his appearance pro se; 2 or (2)
obtain new counsel.

At Camden, New Jersey

2

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

Plaintiff’s counsel represents that Plaintiff has been
attending Rutgers Law School for several years, and although
counsel is not certain that Plaintiff is still attending law
school due to Plaintiff’s failure to communicate with them,
Plaintiff’s Facebook page currently lists him as attending law
school. (Docket No. 43-1 at 23.)
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