Capitol Records, LLC v. Redigi Inc.

Filing 180

MEMORANDUM OF LAW in Support re: 179 MOTION for James J. Pizzirusso, Seth R. Gassman, and Nathaniel C. Giddings to Withdraw as Attorney for Defendants John Ossenmacher and Larry Rudolph. . Document filed by John Ossenmacher, Larry Rudolph. (Pizzirusso, James)

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

12-CV-00095 (RJS)

CAPITOL RECORDS, LLC, CAPITOL
CHRISTIAN MUSIC GROUP, INC., and
VIRGIN RECORDS IR HOLDINGS, Inc.,
Plaintiffs,
v.
REDIGI INC., JOHN OSSENMACHER, and
LARRY RUDOLPH a/k/a LAWRENCE S.
ROGEL,
Defendants.

MEMORANDUM OF LAW IN SUPPORT OF CONSENT MOTION OF
HAUSFELD LLP TO WITHDRAW AS COUNSEL TO
DEFENDANTS JOHN OSSENMACHER AND LARRY RUDOLPH
Hausfeld LLP (“Hausfeld”) submits this memorandum of law in support of its consent
motion to withdraw for its representation of John Ossenmacher and Professor Larry Rudolph
(“Individual Defendants”), the Chief Executive Officer and Chief Technology Officer,
respectively of Defendant ReDigi Inc (“ReDigi”).1
BACKGROUND
The Individual Defendants were added to this litigation on August 30, 2013. Declaration
of James J. Pizzirusso at ¶ 5 (hereinafter “Pizzirusso Declaration”). Shortly thereafter, Individual
Defendants retained the services of Hausfeld to represent them in this litigation. Pizzirusso Decl.
at ¶ 6. Since being retained, Hausfeld has vigorously represented the interests of the Individual
Defendants in this litigation. In particular, Hausfeld has undertaken numerous tasks on their behalf,

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Nothing in this memorandum or the accompany declaration are intended to nor do they waive the
attorney-client privilege.

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including, but not limited to, making multiple appearance in Court, drafting a motion to dismiss
and supporting briefs, drafting a motion for reconsideration on the Court’s motion to dismiss order,
propounding discovery requests, briefing the availability of discovery, and liaising with defense
counsel and ReDigi’s counsel pursuant to Court orders. Pizzirusso Decl. at ¶ 7.
On October 13, 2015, the Court scheduled trial on all outstanding issues in this case for
April 11, 2016. Order, ECF No. 177. On November 2, 2015, the Court endorsed a joint conditional
stipulation as to the Individual Defendants’ liability which, in relevant part, provided that “the
Individual Defendants and Plaintiffs agree that the Individual Defendants will stipulate that the
Individual Defendants will waive their right to contest their liability so that this case can proceed
to a trial on damages and then to the appeals stage.” Joint Conditional Stipulation as to Liability,
ECF No. 178. Thus, the only remaining issue to be decided at the April 2016 jury trial are the
damages, if any, that ReDigi and the Individual Defendants should pay.
Because the Individual Defendants have conditionally stipulated that they will be jointly
and severally liable with ReDigi for any damage award, the Individual Defendants believe that
their interests at the damages trial can be adequately represented either pro se or by new counsel.
Individual Defendants therefore consent to Hausfeld’s withdrawal from this action. Pizzirusso
Decl. at ¶ 9. And because there is only a single issue remaining to be tried such that the current
schedule will not be impacted by Hausfeld’s withdrawal from the action, ReDigi and the Plaintiffs
do not object to Hausfeld’s withdrawal. Pizzirusso Decl. at ¶¶ 10, 11.
ARGUMENT
A.

Withdrawal is Appropriate Under Local Rule 1.4.
Rule 1.4 of the Local Rules of the United States District Courts for the Southern and

Eastern Districts of New York provides:
An attorney who has appeared as attorney of record for a party may
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be relieved or displaced only by order of the court and may not
withdraw from a case without leave of the court granted by order.
Such an order may be granted only upon a showing by affidavit or
otherwise of satisfactory reasons for withdrawal or displacement
and the posture of the case, including its position, if any, on the
calendar.
Where, as here, the represented parties do not object to the withdrawal, counsel’s request
to withdraw is routinely granted. In re Air Crash Disaster Off the Coast of Nantucket Island,
Mass. on Oct. 31, 1999, No. MD-00-1344, 2008 WL 4426006, at *4 (E.D.N.Y. Aug. 15, 2008) is
illustrative. In that case, plaintiffs’ counsel sought to withdraw with the consent of the plaintiffs
and with one of the defendants; the other defendants did not object to counsel’s withdrawal. Id.
The court found that withdrawal was appropriate, stating, “[P]laintiffs’ unanimous consent to the
withdrawal, combined with the consent or neutrality of defendants, weighs in favor of granting
the motions.” Id. Upon granting the motion, the court granted the plaintiffs roughly one month
“to find new counsel to appear on their behalf or to begin prosecuting their case pro se.” Id.
Consented motions to withdraw are granted regardless of whether the formerlyrepresented parties decide to proceed pro se or with new counsel.2 For instance, in Negrin v.
Kalina, counsel for the plaintiffs moved to withdraw with the “full[] consent” of the plaintiffs.
No. 09 Civ. 6234, 2013 WL 1736470, at *1 (S.D.N.Y. Apr. 12, 2013). The only issue remaining
to be decided in that case was the damages award, and because the individual plaintiff was “a
sophisticated business person” the court permitted that plaintiff to proceed to the damages phase
pro se. Id. Conversely, in Altvater Gessler-J.A. Baczewski Int’l (USA) Inc. v. Sobieski
Destylarnia S.A., defendant’s counsel sought to withdraw with the consent of the defendant. No.
06 Civ. 6510, 2011 WL 2893087, at *8 (S.D.N.Y. July 14, 2011). In granting the request, the

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The Individual Defendants have not yet determined whether they will proceed pro se or retain new
counsel. If the Individual Defendants retain new counsel, that counsel will inform the Court of its representation
within 30 days of Hausfeld’s withdrawal. The Individual Defendants do not believe that a stay of the proceedings is
necessary in this 30-day period.

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court noted that the defendant would have “continuity of counsel through lead trial counsel . . . .”
Id. Thus, because the Individual Defendants consent to Hausfeld’s withdrawal, it is immaterial
whether they decide to proceed pro se or through some other counsel through the damages phase
of this case.
B.

Withdrawing at this Stage of the Litigation Would Minimize Prejudice to the
Individual Defendants.
Local Rule 1.4 also requires the Court to consider “the posture of the case, including its

position, if any, on the calendar.” “In addressing motions to withdraw as counsel, district courts
have typically considered whether ‘the prosecution of the suit is [likely to be] disrupted by the
withdrawal of counsel.”’ Whiting v. Lacara, 187 F.3d 317, 320-21 (2d Cir. 1999) (quoting
Brown v. Nat’l Survival Games, Inc., No. 91–CV–221, 1994 WL 660533, at *3 (N.D.N.Y. Nov.
18, 1994)) (alteration in original).
Hausfeld’s withdrawal in this case will not disrupt the resolution of the case. The only
issue remaining to be tried, in April 2016, is the damages, if any, that are due to Plaintiffs from
ReDigi and the Individual Defendants, and Individual Defendants are not requesting a stay of the
case to secure new counsel. In cases even more progressed than this, courts have found no
impediment to withdrawal. See D.E.A.R. Cinestudi S.P.A. v. Int’l Media Films, Inc., No. 03 Civ.
3038, 2006 WL 1676485, at *l-2 (S.D.N.Y. June 16, 2006) (permitting counsel to withdraw after
the close of discovery where trial was months away); Spadola v. New York City Transit Auth.,
No. 00 Civ. 3262, 2002 WL 59423, at *1 (S.D.N.Y. Jan. 16, 2000) (same); Promotica of Am.,
Inc. v. Johnson Grossfield, Inc., No. 98 Civ. 7414, 2000 WL 424184, at *1 (S.D.N.Y. Apr. 18,
2000) (permitting counsel to withdraw after the close of discovery and where the case was ready

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for trial).3 Thus, Hausfeld’s withdrawal will neither prejudice the Individual Defendants nor
delay the case.
CONCLUSION
For the foregoing reasons, Hausfeld respectfully requests the Court grant its consent
motion to withdraw.

Dated: November 5, 2015
HAUSFELD LLP
/s/ James. J. Pizzirusso
James J. Pizzirusso (admitted pro hac vice)
Seth R. Gassman (SG-8116)
Nathaniel C. Giddings (admitted pro hac vice)
HAUSFELD LLP
1700 K Street, N.W., Suite 650
Washington, D.C. 20006
[phone]
Counsel for John Ossenmacher & Larry Rudolph

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Hausfeld has acted, and will continue to act, in a manner consistent with New York Rule of Professional
Conduct 1.16(e) to further alleviate any potential prejudice to the Individual Defendants, including, inter alia,
promptly delivering to Individual Defendants or their new counsel any papers and property to which they are
entitled. Pizzirusso Decl. at ¶ 8.

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