Pimental v. Delta Airlines, Inc.

Filing 50

MEMORANDUM DECISION AND ORDER. The plaintiff's 49 motion for reconsideration of Judge Orenstein's October 16, 2018 order granting the motion to withdraw is denied. Ordered by Judge Ann M. Donnelly on 11/7/2018. (Greene, Donna)

IN CLERK'S OFRCE

US DISTRICT COURT E.D.N.Y.

UNITED STATES DISTRICT COURT

* NOVOP20I8 5

EASTERN DISTRICT OF NEW YORK
X

BROOKLYN OFFICE

NICHOLAS PIMENTEL,
Plaintiff,

MEMORANDUM

- against-

DECISION AND ORDER

17-CV-5317(AMD)
(JO)

DELTA AIRLINES,INC.,TANYA MORGAN,
and SERGEY YEREMEYEV,
Defendants.
X

ANN M.DONNELLY,United States District Judge:

The pro se plaintiff, Nicholas Pimentel, also known as Aasir Azzarmi, moves for

reconsideration of Magistrate Judge James Orenstein's October 16, 2018 order granting
PimenteTs former counsel's motion to withdraw as attorney.(ECF No.49.)For the reasons

discussed below,the plaintiffs motion is denied.
BACKGROUND

On September 11,2017,the plaintiff, represented by Thomas Ricotta, brought this action
against defendants Delta Airlines, Inc., Tanya Morgan, and Sergey Yeremeyev, alleging gender
discrimination under Title VII ofthe Civil Rights Act or 1964, and under state and city law.

(ECF No. 1.) On April 18, 2018, Mr. Ricotta moved to withdraw as counsel because the plaintiff
"ha[d] terminated ...representation," and because of"an irreconcilable breakdown that would

render... continued representation impossible and inappropriate."(ECF No. 17.) On April 26,

2018, after a status conference with the plaintiff at which the motion was discussed. Judge
Orenstein granted the motion and stayed discovery for sixty days while the plaintiff sought new
counsel.(ECF No. 19.)

On May 21, 2018, John C. Luke, Jr. appeared as the plaintiffs new counsel.(ECF No.
21.) After filing a second amended complaint(ECF No. 31), Mr. Luke filed his first motion to
withdraw as attorney, stating that the plaintiff had "requested that current counsel be removed,"

and that the attorney-client relationship "ha[d] taken a sour turn"(ECF No. 37). Judge Orenstein
denied the motion without prejudice, because "the vague representation that counsel's
relationship with the plaintiff ha[d]'soured'[was] not a sufficient reason to allow counsel to

withdraw and leave the plaintiff unrepresented." Aug. 27,2018 Order.
Mr. Luke filed a second motion to withdraw, alleging that the plaintiff had communicated
directly with defense counsel, had "stated that he had new lawyers," and had "sent objectively
abusive language" to Mr. Luke.(ECF No. 38.) Judge Orenstein scheduled a status conference to

discuss the motion and ordered Mr. Luke to submit the plaintiffs emails. Aug. 27,2018
Scheduling Order. Mr. Luke filed the emails under seal on September 18,2018.(ECF No. 41.)

On September 20,2018, the plaintiff opposed Mr. Luke's motion to withdraw, claiming that Mr.
Luke did not have "good cause" to withdraw, and that he would be prejudiced because he could

not find another lawyer.(ECF No.42.) At a status conference on the same day,the plaintiff
"committed to being more courteous to counsel." Sept. 20,2018 Minute Entry. Judge Orenstein
denied the motion without prejudice to renew if the plaintiff"act[s] in a manner that
compromises counsel's ability to provide effective representation."(Jd.)
Eight days later, Mr. Luke filed a third motion to withdraw because the plaintiff had
again terminated him, and because the attomey-client relationship was "irrevocably broken" and

"compromised counsel's ability to provide effective representation."(ECF No.44.)Judge
Orenstein held another conference on October 16, 2018; he granted Mr. Luke's motion and

stayed discovery for thirty days so that the plaintiff could find a new lawyer. Oct. 16, 2018

Minute Entry. The plaintiff moves for "reconsideration" of Judge Orenstein's order; he claims
that Judge Orenstein's decision was not "based on good cause" and has "prejudiced" him, and

that he did not consent to magistrate judge jurisdiction.(ECF No. 49.)
DISCUSSION

Pursuant to 28 U.S.C. § 636(b),"ajudge may designate a magistrate judge to hear and

determine any pretrial matter pending before the court" with or without the consent ofthe
parties. See Gonzalez v. Rakkas,846 F. Supp. 229, 231 (E.D.N.Y. 1994)(citing Brown v.
University Heights Management Co., No. 93-CV-4588, 1993 WL 385733, at *2(S.D.N.Y. Sept.

28, 1993)(consent of parties not required for reference under 28 U.S.C. § 636(b))). Judge
Orenstein, an experienced and able jurist, has been designated to oversee the pretrial matter in

this case. This designation does not require the plaintiffs consent. Moreover, Judge Orenstein's
decision to permit counsel to withdraw was reasonable, especially under these circumstances.
A districtjudge must "modify or set aside any part ofthe [magistrate judge's] order that
is clearly erroneous or is contrary to law." Fed. R. Civ. Prod. 72(a); see 28 U.S.C. § 636(b)(1)(A)

("A judge ofthe court may reconsider any pretrial matter... where it has been shown that the
magistrate judge's order is clearly erroneous or contrary to law."). An order is "clearly
erroneous if, based on all the evidence, a reviewing court Ts left with the definite and firm
conviction that a mistake has been committed,"'Storms v. United States, No. 13-CV-0811,2014

WL 3547016, at *4(E.D.N.Y. July 16,2014)(quoting United States v. Murphy,703 F.3d 182,
188(2d Cir. 2012)), and "is 'contrary to law' when it fails to apply or misapplies relevant

statutes, case law, or rules of procedure," Weiner v. McKeefery, No. 1 l-CV-2254,2014 WL
2048381, at *3(E.D.N.Y. May 19,2014)(citation omitted). Rule 72(a) provides "a highly
deferential standard ofreview" and "imposes a heavy burden on the objecting party." Regan v.

Daimler Chrysler Corp., No.07-CV-l 112,2008 WL 2795470, at *1 (E.D.N.Y. July 18, 2008)
(citation omitted).

The plaintiff is representing himself, so I construe his motion liberally and interpret it to
raise the strongest arguments it suggests. See Erickson v. Pardus,551 U.S. 89,94(2007); Sealed
Plaintiffv. Sealed Defendant #7,537 F.3d 185,191-93(2d Cir. 2008). Even under this standard.
Judge Orenstein's order is neither clearly erroneous nor contrary to law. "'[l]t is clear that the
existence of an irreconcilable conflict between attorney and client is a proper basis for the

attorney to cease representing his client.'" Griffin v. Norwegian Cruise Line, Ltd., No.01-CV9755,2002 WL 500375, at *1 (S.D.N.Y. Apr. 3, 2002)(quoting Cosgrove v. Federal Home Loan

Bank ofNew York, No. 90-CV-6455, 1995 WL 600565, at *2(S.D.N.Y. Oct. 12, 1995)). Judge
Orenstein gave the plaintiff every consideration despite the plaintiffs insulting and combative

communications with his lawyer.' He denied counsel's first two motions to withdraw, and
directed the plaintiffto cooperate with his counsel. Nevertheless,the plaintiff continued to be
disrespectful and abusive, causing the attorney-client relationship to deteriorate and

"compromis[ing] counsel's ability to provide effective representation."(ECF No. 44.) Judge
Orenstein, who has experience and expertise in managing pretrial litigation, made a sensible

decision that was well within his discretion. The plaintiffs motion is denied.^
CONCLUSION

The plaintiffs motion for reconsideration of Judge Orenstein's October 16, 2018 order

granting the motion to withdraw is denied.

'The plaintiffs emails to Mr. Luke include the following:"You are spiteful, incompetent and lazy.""You disgust
me." You are abusive, a horrible lawyer, and I abhor you."(ECF No.41.)
"

^ Counsel's withdrawal will not disrupt the progress ofthe litigation, which is still in the discovery phase. See Brown
V. National Survival Games. Inc., No.91-CV-221,1994 WL 660533, at *3(N.D.N.Y. Nov.18, 1994)(finding that

because "[discovery] is not complete and the case is not presently scheduled for trial.... granting the instant
motion [to withdraw] will not likely cause undue delay")).

so ORDERED.

s/Ann M. Donnelly
Ann M. Donnelly
United States District Judge

Dated: Brooklyn, New York
November 7, 2018