SYDELL v. LIFEMED USA, INC. et al

Filing 25

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 10/27/2017; that Attorney Kevin Bradley Cartledge's Motion to Withdraw (Docket Entry 16 ) is GRANTED as to Defendant Maynard and GRANTED IN PART as to Corporate Defendants, in that current counsel shall remain in the case for the limited purpose of accepting service of papers for (and forwarding them on to) Corporate Defendants, unless/until new counsel appears for Corporate Defendants. Counsel shall provide the Clerk with an address for addition to the Docket as the place for service upon Defendant Maynard, who now proceeds pro se. FURTHER that Corporate Defendants shall cause new counsel to file a notice of appearance on their behalf by November 10, 2017. FURTHER th at Plaintiff's Motion to Compel (Docket Entry 18 ) is GRANTED. On or before November 10, 2017, Defendants shall serve full and complete responses to Plaintiff's First Set of Interrogatories and Requests for Production of Documents. FURTHER that, on or before November 10, 2017, Plaintiff shall file a notice setting out the reasonable expenses she incurred in litigating the Motion to Compel. FURTHER that, if Plaintiff timely files a notice setting forth the reasonable expenses she incur red in litigating the Motion to Compel, Defendants shall file, on or before November 24, 2017, EITHER a memorandum of no more than three pages (excluding attachments) contesting the reasonableness of the expenses claimed (along with a certificate tha t Defendants have conferred in good faith with Plaintiff about such matters), OR a notice agreeing to pay the claimed expenses. FURTHER that, if Defendants timely file a memorandum contesting the reasonableness of the claimed expenses, Plaintiff shal l file, on or before December 8, 2017, a memorandum of no more than three pages (excluding attachments) responding to Defendants' memorandum. FURTHER that, if Plaintiff timely files such a response memorandum, Defendants may file, on or before December 15, 2017, a reply of no more than two pages (excluding attachments). (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

KRYSTINN L. SYDELL,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
LIFEMED USA, INC., et al.,
Defendants.

1:16cv1143

MEMORANDUM OPINION AND ORDER
This case comes before the Court on Attorney Kevin Bradley
Cartledge’s Motion to Withdraw on Behalf of Defendants (Docket
Entry 16) (the “Motion to Withdraw”) and Plaintiff’s Motion to
Compel Discovery Production and for Costs Incurred (Docket Entry
18) (the “Motion to Compel”).

For the reasons that follow, the

Court will grant in part the Motion to Withdraw and will grant the
Motion to Compel.
BACKGROUND
Krystinn L. Sydell (the “Plaintiff”) commenced this action
against LifeMed USA, Inc., the LifeMed Group, Inc., and Murray
Maynard (the “Defendants”), alleging failure to pay wages and
wrongful termination.

(See generally Docket Entry 1.)

filed an Answer and Counterclaim.

Defendants

(See generally Docket Entry 8.)

On September 13, 2017, counsel for Defendants filed the Motion to
Withdraw, noting that Defendants had discharged him and his law
firm, as they “have no resource or intent to defend this matter

further.”

(Docket

Entry

16

at

1.)

Plaintiff

responded

in

opposition, contending that, because LifeMed USA and the LifeMed
Group

(the

“Corporate

Defendants”)

cannot

appear

pro

se,

“withdrawal of Counsel without simultaneous substitution would
effectively suspend this litigation–potentially indefinitely–and
thus, deny justice to the Plaintiff.”
Defendants replied.

(Docket Entry 20 at 2.)

(Docket Entry 23.)1

In addition, Plaintiff

filed the instant Motion to Compel (supported by a Memorandum
(Docket Entry 19)), seeking an order requiring Defendants to
provide the responses and documents requested in Plaintiff’s First
Set

of

Interrogatories

Production of Documents.
2.)

and

Plaintiff’s

First

Requests

for

(Docket Entry 18 at 1; Docket Entry 19 at

Defendants did not respond to the Motion to Compel.

(See

Docket Entries dated Sep. 21, 2017, to present.)
DISCUSSION
I. Motion to Withdraw
Under this Court’s Local Rules, “[n]o attorney who has entered
an appearance in any civil or criminal action shall be permitted to
withdraw an appearance . . . except on order of the Court . . . .”
M.D.N.C. LR 83.1(e)(1).

The North Carolina Rules of Professional

Conduct, however, provide that “a lawyer . . . shall withdraw from
the representation of a client if . . . the lawyer is discharged.”

1

Plaintiff filed an unauthorized surreply (Docket Entry 24),
which the Court has not considered.
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N.C. Rules of Prof’l Conduct R. 1.16(a)(3) (emphasis added).

The

decision to grant or deny a motion to withdraw falls within the
Court’s discretion.

See Patterson v. Gemini Org., Ltd., 238 F.3d

414 (table), No. 99-1537, 2000 WL 1718542, at *2 (4th Cir. 2000)
(citing Whiting v. Lacara, 187 F.3d 317, 320 (2d Cir. 1999)).

“In

addressing motions to withdraw as counsel, district courts have
typically considered whether the prosecution of the suit is likely
to be disrupted,” which in turn depends on the stage of the
proceedings.
and

brackets

Whiting, 187 F.3d at 320 (internal quotation marks
omitted).

Withdrawal

problematic nearer to the trial date.

of

counsel

becomes

more

See id. at 321 (comparing

Brown v. National Survival Games, Inc., No. 91-CV-221, 1994 WL
6605533, 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”), with Malarkey v.
Texaco, Inc., No. 81 Civ. 5224, 1989 WL 88709, at *2 (S.D.N.Y. July
31, 1989) (denying counsel’s motion to withdraw where case was “on
the verge of trial readiness”)).

Finally, “[i]t has been the law

for the better part of two centuries . . . that a corporation may
appear in the federal courts only through licensed counsel.”
Rowland v. California Men’s Colony, Unit II Men’s Advisory Council,
506 U.S. 194, 201-02 (1993).

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Here, the Court finds that the risk of disruption does not
warrant the denial of the Motion to Withdraw. The discovery period
has not concluded (see Text Order dated July 24, 2017), and the
trial date remains more than eight months away (see Docket Entry
14). Moreover, “[u]nder th[e]se circumstances where the client has
terminated the relationship, ‘by denying a counsel’s motion to
withdraw . . . [the C]ourt would be forcing an attorney to violate
ethical duties and possibly be subject to sanctions.’”

Awolesi v.

Shinseki, 31 F. Supp. 3d 534, 538 (W.D.N.Y. 2014) (quoting Whiting,
187 F.3d at 321).

Finally, Defendants have indicated that they no

longer wish to “defend this matter further” (Docket Entry 16 at 1),
making it unlikely that granting the Motion to Withdraw would
“suspend this litigation . . . indefinitely” (Docket Entry 17 at
2).

If

including

Defendants
by

fail

obtaining

to

new

participate
counsel

to

in

this

appear

litigation,

for

Corporate

Defendants, the Court can enter appropriate orders and ultimately
enter

judgment

against

them.

See,

e.g.,

Fed.

R.

Civ.

P.

37(b)(2)(A), 41(c), 55(b).
The Court will therefore grant the Motion to Withdraw, except
that, as to Corporate Defendants, counsel shall remain in the case
for the limited purpose of receiving service of papers (which
counsel must then forward to Corporate Defendants), unless/until
new counsel appears on behalf of Corporate Defendants.

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Defendant

Maynard will now proceed pro se and the Court will set a deadline
for new counsel to appear for Corporate Defendants.
II. Motion to Compel
Defendants did not respond to the Motion to Compel.
Docket Entries dated Sep. 21, 2017, to present.)

(See

By failing to

timely respond, Defendants waived their right to oppose the Motion
to

Compel.

See

M.D.N.C.

LR

7.3(k).

Additionally,

“[i]f

a

respondent fails to file a response within the time required . . .,
the motion will be considered and decided as an uncontested motion,
and ordinarily will be granted without further notice.” Id. Under
the circumstances, the Court discerns no reason to depart from this
general rule, but instead finds good cause to order Defendants to
provide the responses and documents requested in Plaintiff’s First
Set

of

Interrogatories

and

Plaintiff’s

First

Requests

for

Production of Documents.
As a final matter, the Motion to Compel expressly requests
expense-shifting.

(See Docket Entry 18 at 1.)

Upon granting a

motion to compel, a court must “require the party . . . whose
conduct

necessitated

reasonable

expenses

attorney’s fees.”

the

motion

incurred

in

.

.

.

making

to
the

pay

the

motion,

Fed. R. Civ. P. 37(a)(5)(A).

movant’s
including

Only three

exceptions apply to the foregoing mandate: “(i) the movant filed
the motion before attempting in good faith to obtain the disclosure
or discovery without court action; (ii) the opposing party’s

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nondisclosure, response, or objection was substantially justified;
or (iii) other circumstances make an award of expenses unjust.”
Id. In light of the representations and arguments in the Motion to
Compel and related Memorandum, as well as the failure of Defendants
to respond in opposition thereto, the Court concludes that none of
these exceptions apply in this instance.

Accordingly, given the

generally mandatory nature of expense-shifting, the Court will
direct Plaintiff to file a notice identifying its reasonable
expenses incurred in litigating the instant Motion to Compel and
will afford Defendants an opportunity to address the reasonableness
of the claimed expenses.
CONCLUSION
The circumstances warrant (1) allowing counsel for Defendants
to withdraw, except that said counsel shall continue to receive
(and to forward) papers served on Corporate Defendants, and (2)
requiring Defendants to respond to discovery.
IT

IS

THEREFORE

ORDERED

that

Attorney

Kevin

Bradley

Cartledge’s Motion to Withdraw (Docket Entry 16) is GRANTED as to
Defendant Maynard and GRANTED IN PART as to Corporate Defendants,
in that current counsel shall remain in the case for the limited
purpose of accepting service of papers for (and forwarding them on
to) Corporate Defendants, unless/until new counsel appears for
Corporate Defendants.

Counsel shall provide the Clerk with an

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address for addition to the Docket as the place for service upon
Defendant Maynard, who now proceeds pro se.
IT IS FURTHER ORDERED that Corporate Defendants shall cause
new counsel to file a notice of appearance on their behalf by
November 10, 2017.

Failure to comply with this Order shall result

in the imposition of case-dispositive sanctions.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Compel
(Docket Entry 18) is GRANTED.

On or before November 10, 2017,

Defendants shall serve full and complete responses to Plaintiff’s
First

Set

Documents.

of

Interrogatories

and

Requests

for

Production

of

Failure by Defendants to comply with this Order shall

result in the imposition of case-dispositive sanctions.
IT IS FURTHER ORDERED that, on or before November 10, 2017,
Plaintiff shall file a notice setting out the reasonable expenses
she incurred in litigating the Motion to Compel.

Failure by

Plaintiff to comply with this Order shall result in denial of any
expense-shifting as to the Motion to Compel.
IT IS FURTHER ORDERED that, if Plaintiff timely files a notice
setting forth the reasonable expenses she incurred in litigating
the Motion to Compel, Defendants shall file, on or before November
24,

2017,

(excluding

EITHER

a

memorandum

attachments)

of

contesting

no
the

more

than

three

reasonableness

pages

of

the

expenses claimed (along with a certificate that Defendants have
conferred in good faith with Plaintiff about such matters), OR a
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notice agreeing to pay the claimed expenses.

The failure by

Defendants to comply with this Order shall result in an award of
expenses claimed by Plaintiff.
IT IS FURTHER ORDERED that, if Defendants timely file a
memorandum contesting the reasonableness of the claimed expenses,
Plaintiff shall file, on or before December 8, 2017, a memorandum
of no more than three pages (excluding attachments) responding to
Defendants’ memorandum.
Order

shall

result

in

Failure by Plaintiff to comply with this
denial

of

any

expenses

contested

by

Defendants.
IT IS FURTHER ORDERED that, if Plaintiff timely files such a
response memorandum, Defendants may file, on or before December 15,
2017, a reply of no more than two pages (excluding attachments).

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 27, 2017

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