RICHMOND v. WINCHANCE SOLAR FUJIAN TECHNOLOGY CO. LTD. et al

Filing 138

MEMORANDUM OPINION and ORDER granting 121 Motion to Withdraw as Attorney. Attorney MARC S. FRIEDMAN and ANDREW MARC GRODIN terminated as counsel of record for Defendant Winchance Solar Fujian Technology Co. Ltd. Signed by Magistrate Judge Douglas E. Arpert on 8/5/2014. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SIMON NICHOLAS RICHMOND

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Plaintiff,
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v.
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WINCHANCE SOLAR FUJIAN
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TECHNOLOGY CO. LTD., et al.
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Defendants.
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___________________________________ :

Civil Action No. 3:13-cv-1951 (MLC)
Civil Action No. 3:13-cv-1954 (MLC)
Civil Action No. 3:13-cv-1959 (MLC)

MEMORANDUM OPINION
AND ORDER

This matter comes before the Court on a Motion by Dentons US LLP (the “Dentons Firm”),
counsel of record for Defendant Winchance Solar Fujian Technology Co. Ltd. (“Winchance”), to
withdraw as Counsel [dkt. nos. 206, 208]. The Court initially granted the Dentons Firm’s Motion,
believing it to be unopposed [dkt. no. 209]. By letter dated April 2, 2014, however, Plaintiff Simon
Nicholas Richmond (“Plaintiff”) informed the Court of his objection to the Motion and requested
that the Court vacate its earlier Order. The Court granted this request [dkt. no. 210]. Thereafter,
Plaintiff filed his Opposition [dkt. no. 211], and the Dentons Firm filed a Reply [dkt. no. 212].
The Court has now fully considered the Parties’ submissions, pursuant to FED. R. CIV. P. 78, and,
for the reasons set forth herein, the Dentons Firm’s Motion to Withdraw [dkt. nos. 206, 208] is
GRANTED.
I.

FACTUAL BACKGROUND
Since the Parties are intimately familiar with the facts and procedural history of this case,

the Court will only recite those facts pertinent to the instant Motion. On September 27, 2013,
Winchance’s lead counsel, Nate Dilger of One LLP, contacted the Dentons Firm to inquire as to
its availability to act as local counsel. See Dentons’ Reply Brief at p. 2, dkt. no. 212. Three days

later, attorneys Marc Friedman and Andrew Grodin of the Dentons Firm entered appearances on
behalf of Winchance, filed an Answer to the Amended Complaint, and filed a Corporate Disclosure
Statement. See dkt. nos. 154-157. Although the Answer and Corporate Disclosure Statement were
signed by the Dentons Firm, those documents list Mr. Dilger and his firm, One LLP, as counsel
for Winchance. On October 10, 2013, Mr. Dilger participated telephonically in the scheduled case
management conference before the Court.
On November 25th, 2013, Mr. Dilger informed the Dentons Firm that Winchance no longer
desired its representation in these matters. See Dentons’ Reply Brief at p. 3. Subsequently, the
Dentons Firm inquired whether Winchance wished for the firm to continue as local counsel. In
response, Winchance instructed the Dentons Firm to “withdraw the representation.” See Dentons’
Reply at p. 3. Thereafter, the Dentons Firm filed the present Motion to Withdraw on March 21,
2014, which Plaintiff has opposed. To the Court’s knowledge, One LLP no longer represents
Winchance in connection with this matter.
II.

LEGAL STANDARD
Unless new counsel is substituted, attorneys may not withdraw except by leave of the

Court. L. CIV. R. 102.1. The New Jersey Rules of Professional Conduct provide that an attorney
may withdraw from representing a client if:
(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; or

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(6) the representation will result in an unreasonable financial burden on the
lawyer or has been rendered unreasonably difficult by the client; or other
good cause for withdrawal exists.
N.J. R.P.C. § 1.16 (b); see also Haines v. Liggett Group, Inc., 814 F. Supp. 414, 422-23 (D.N.J.
1993). The Rules also provide that “a lawyer shall not represent a client or, where representation
has commenced, shall withdraw from the representation of a client if . . . (3) the lawyer is
discharged.” N.J. R.P.C. § 1.16 (a).
The Court looks to four factors in determining whether counsel may withdraw from a case:
“(1) the reasons why withdrawal is sought; (2) the prejudice withdrawal may cause to other
litigants; (3) the harm withdrawal might cause to the administration of justice; and (4) the degree
to which withdrawal will delay the resolution of the case.” Rusinow v. Kamara, 920 F. Supp. 69,
71 (D.N.J. 1996); see also United States ex rel. Cherry Hill Convalescent Ctr. V. Healthcare Rehab
Systems, Inc., 944 F. Supp. 244, 252-53 (D.N.J. 1990).
III.

DISCUSSION
In opposing the present Motion, Plaintiff notes the well-established rule that a corporation

may not proceed pro se before the Court. See Pl.’s Opposition at p. 1, dkt. no. 211. Therefore,
Plaintiff argues, the Dentons Firm should not be permitted to withdraw until new counsel is
substituted in its place. Id. Plaintiff also suggests that this Motion is occasioned by Winchance’s
desire for a “do over” of its litigation choices during the discovery stage of this action. Id. at p. 2.
Specifically, Plaintiff contends that Winchance (1) failed to serve separate discovery requests; (2)
defaulted on its discovery obligations; and (3) failed to file any Infringement Contentions. Id. at
pp. 1-2. Moreover, Plaintiff notes that Winchance is a foreign corporation based in China, and
thus permitting the Dentons Firm to withdraw would mean that all papers “will have to be
translated into Chinese and served in China under the cumbersome Hague Convention procedures,
which experience has shown can take six months or more.” Id. Finally, Plaintiff argues that the
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Dentons Firm has proffered no excuse for waiting almost four months after its termination to seek
withdrawal from this litigation. Id.
In response, the Dentons Firm emphasizes that its requested withdrawal is not voluntary.
See Dentons’ Reply at p. 1. Indeed, the present Motion did not spawn from any disagreement with
Winchance over money, strategy or other reasons specified in N.J. R.P.C. 1.16(b). Id. Rather,
Winchance terminated the firm’s services. As the Dentons Firm asserts, R.P.C. 1.16(a) prohibits
the firm’s continued representation of Winchance in this matter, since “a lawyer . . . shall withdraw
from the representation of a client if . . . (3) the lawyer is discharged.” See N.J. R.P.C. 1.16(a);
Dentons’ Reply at pp. 1-2. In addition, the Dentons Firm argues that the present Motion was filed
at the early stages of discovery and that Plaintiff would suffer no prejudice if the Motion is granted.
See dkt. no. 208. Finally, the Dentons Firm has not acted as Winchance’s only attorney in this
matter; indeed, Mr. Dilger and One LLP have participated extensively in this matter as lead
counsel.
At the outset, it is imperative to emphasize that neither the Court nor the Dentons Firm
have expressed any intention to have Winchance proceed pro se in this matter. In fact, the Court’s
original Order granting the Dentons Firm’s withdrawal provided a 21-day period for Winchance
to secure new representation. See dkt. no. 209. As the Dentons Firm notes, “courts in this
jurisdiction routinely enter such orders even when the withdrawal, unlike here, is at the attorneys
request and not because the attorneys were terminated.” See Dentons’ Reply at p. 4, citing Direct
Wholesale Inc. v. Six Communications, LLC, Civ. Act. No. 2:09-cv-2139 (MCA), dkt. no. 110,
(November 14, 2012) (granting Motion to Withdraw and allowing corporate entity 20 days to
secure counsel); Marlowe Patent Holdings LLC. v. Dice Electronics, LLC, Civ. Act. No. 3:11-cv7044 (DEA), dkt. no. 49 (June 17, 2013) (giving parties 20 days to obtain new counsel or face

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default). Despite Plaintiff’s insinuation that the present Motion is merely attempt to correct
Winchance’s discovery deficiencies, the Court notes that, at the time the Motion was filed, Plaintiff
had not sought any relief from the Court regarding these ostensible controversies. Nonetheless,
any disputes that may exist would not be extinguished by allowing the Dentons Firm to withdraw.
IV.

CONCLUSION & ORDER
The Court having considered this matter pursuant to Fed. R. Civ. P. 78, and for good cause

shown,
IT IS on this 5th day of August, 2014,
ORDERED that the Dentons Firm’s Motion to Withdraw as Counsel for Winchance [dkt.
nos. 206, 208] is GRANTED; and it is further
ORDERED that Winchance shall have thirty (30) days from the date of this Order to
secure new counsel, after which time it may be deemed to be in default.

s/ Douglas E. Arpert
DOUGLAS E. ARPERT
UNITED STATES MAGISTRATE JUDGE

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