WILMINGTON SAVINGS FUND SOCIETY FSB v. OTIENO-NGOJE
Filing
58
OPINION. Signed by Judge William J. Martini on 11/13/18. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
WILMINGTON SAVINGS FUND SOCIETY,
FSB as Trustee of Stanwich Mortgage Loan
Trust A,
Plaintiff,
Civ. No. 2:16-5631 (WJM)
OPINION
v.
BERYL OTIENO-NGOJE,
Defendant.
WILLIAM J. MARTINI, U.S.D.J.:
This matter is before the Court upon the Motion for Leave to Withdraw as Counsel to
Defendant Beryl Otieno-Ngoje, ECF NO. [57] (“Motion”). Neither counsel for Plaintiff
nor Defendant has filed any opposition to the motion. The Court has reviewed the motion,
its attached affidavits, and the record in this case. For the reasons set forth below, the
Motion is GRANTED.
Price, Meese, Shulman & D’Armino, P.C. (“Price”) has represented Defendant in
this matter since March 31, 2016. ECF No. [57-1] ¶ 3. On September 19, 2018, Price filed
the instant Motion. In the affidavit in support of the Motion, attorney Michael Orozco of
Price represents that for approximately six months his firm has not been able to contact
Defendant Otieno-Ngoje unless it threatens withdrawal from the matter, has been unable
to meet agreed-to discovery deadlines due to Defendant’s lack of cooperation, and has been
unable to successfully convey to Defendant that she should not file documents or contact
the Court without consultation of counsel. See ECF No. [57-1]. The affidavit also states
that Price has been unable to collect payment on a “large past due balance” for services
rendered. Id. ¶ 6. Price is thus no longer prepared to represent Defendant. Id. ¶ 7
Under the Local Rules of this District “[u]nless other counsel is substituted, no
attorney may withdraw an appearance except by leave of Court. After a case has been first
set for trial, substitution and withdrawal shall not be permitted except by leave of Court.”
L.R. 102.1. The New Jersey Rules of Professional Conduct govern the circumstances
under which an attorney may withdraw. L.R. 103.1(a). With certain exceptions not
relevant here, an attorney may be granted leave of court to withdraw in only the following
circumstances:
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(1) withdrawal can be accomplished without material adverse
effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer's
services that the lawyer reasonably believes is criminal or
fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime
or fraud;
(4) the client insists upon taking action that the lawyer considers
repugnant or with which the lawyer has a fundamental
disagreement;
(5) the client fails substantially to fulfill an obligation to the
lawyer regarding the lawyer's services and has been given
reasonable warning that the lawyer will withdraw unless the
obligation is fulfilled;
(6) the representation will result in an unreasonable financial
burden on the lawyer or has been rendered unreasonably
difficult by the client; or
(7) other good cause for withdrawal exists.
N.J. Rules Prof’l Conduct R. 1.16(b). If one or more of these circumstances are met, the
district court may weigh certain non-exclusive factors including the reasons for
withdrawal, the prejudice withdrawal may cause to other litigants, the harm withdrawal
might cause to the administration of justice, and the degree to which withdrawal will delay
the resolution of the case to determine if leave should be granted. Rusinow v. Kamara, 920
F. Supp. 69, 71 (D.N.J. 1996) (citation omitted).
Price moves to withdraw on grounds (5), (6) and (7) under Professional Conduct Rule
1.16. ECF No. [57-2] at 5. Based on the affidavit of counsel and the representations in the
Motion, the Court finds withdrawal is permitted under Professional Conduct Rule 1.16.
Defendant has repeatedly failed to cooperate with her attorneys and to refrain from
contacting the Court on her own, despite warnings from her counsel. Moreover, continuing
to represent Defendant in this matter presents an unreasonable financial burden on Price
considering the outstanding invoices which Defendant has failed to pay, despite her
promises to do so.
Weighing the factors in Rusinow, the Court finds withdrawal warranted. Price has
articulated good cause for withdrawal and Defendant has not opposed the Motion nor
contacted the Court since its filing. Further, the Court sees no obvious harm or delay
presented by the withdrawal. The Court will thus permit Price to withdraw its appearances
on behalf of Defendant.
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For the reasons stated above, Price’s Motion, ECF No. [57] is GRANTED. An
appropriate order will follow.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: November 13, 2018
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