Martin v. Garrett et al

Filing 47

ORDER granting 41 MOTION to Withdraw as Attorney, and Atty Aaron Cole Mayer is removed as counsel of record for Pltf; directing Mr. Mayer serve copy of this Order upon Pltf and Receiver within 5 days of entry of this Order, and file notice of such service promptly thereafter; and extending Pltf's deadline to respond to Deft Wazan's 39 MOTION to Dismiss to and including 4/5/2019 (plus an additional 3 days if served by mail). Signed by Magistrate Judge W. Carleton Metcalf on 2/05/2019. (See Order for further details). (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:17 CV 350
MARY MARTIN,
Plaintiff,
v.
NAKISHA GARRETT, in her individual
capacity as employee of the North Carolina
Department of Public Safety; BIANCA
HARRIS, in her individual capacity as warden
of North Carolina Correctional Institution for
Women; MS. THOMPKINS, in her individual
capacity as an employee of the North Carolina
Department of Public Safety; WALLY
WAZAN, in his individual capacity as
employee of the North Carolina Department
of Commerce,
Defendants.
______________________________________

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ORDER

This matter is before the Court on a Motion to Withdraw (Doc. 41) filed by
attorney Aaron Mayer, counsel for Plaintiff.
A hearing on this Motion was conducted on January 31, 2019. Appearing at the
hearing were Mr. Mayer, attorney Faison Hicks (on behalf of Defendant Wazan), and
attorney Corrine Lusic (on behalf of Defendants Garrett, Harris, and Thompkins).
Plaintiff is incarcerated and did not appear. At the conclusion of the hearing, the Court
took the matter under advisement. This Order now follows.

I.

Procedural Background
This matter began with the filing of a complaint (Doc. 1) on December 22, 2017.
An Amended Complaint was filed by Plaintiff on August 13, 2018 (Doc. 31).
Defendants Garrett, Harris, and Thompkins answered on August 17, 2018 (Doc.

34).
Defendant Wazan filed a motion to dismiss in lieu of an answer on December 17,
2018, along with a supporting memorandum (Docs. 39, 40). No response has been filed
and the Motion to Dismiss remains pending.
II.

Basis for the Motion to Withdraw
The evidence of record and the statements of counsel at the hearing indicate that

Mr. Mayer is admitted to practice law in the states of North Carolina, South Carolina, and
Florida. According to the Motion and subsequent filings, his license to practice law in
South Carolina has been suspended since August 2018, a situation he indicates resulted
from his failure to appear at an interview for which he did not receive notice. The
associated paperwork indicates that a receiver (“Receiver”) has been appointed for his
practice and is to assume responsibility for Mr. Mayer’s client files. Mr. Mayer states,
however, that the Receiver is employed by the Office of Disciplinary Counsel with the
State of South Carolina and is empowered only to address issues with Mr. Mayer’s South
Carolina cases, not any cases he may have in North Carolina or elsewhere. He further
advises that the Receiver has specifically asked only for Mr. Mayer’s South Carolina
files.

Upon inquiry by the Court, Mr. Mayer advised that his license to practice in
Florida has also been suspended, in this instance for failure to pay his annual state bar
dues on time.
Mr. Mayer informed the Court that while his license to practice in North Carolina
is active and unencumbered, as a practical matter, he is unable to proceed with
representation of Plaintiff or other similar matters due to the freezing of his bank
accounts in South Carolina by virtue of his suspension in that state. During the hearing,
Mr. Mayer also alluded to personal circumstances that suggest he is not in a position to
represent Plaintiff zealously.
III.

Discussion
An attorney who is a member in good standing of the North Carolina State Bar is

eligible for regular admission to practice before this Court, as noted in Local Civil Rule
83.1(a). This District’s records show that Mr. Mayer was admitted to practice here on
December 18, 2017.
When an attorney who has been admitted to practice in this District is disbarred or
suspended from the practice of law in any court or by any state bar, disciplinary board, or
other state licensing agency, a judge of this Court may enter an order immediately
suspending that attorney from practice before this Court or taking such other lesser action
the Court deems appropriate. See Local Civil Rule 83.2.
Pursuant to Local Civil Rule 83.1(f), counsel seeking to withdraw must
electronically file written consent of his or her client. Absent the client’s consent,

withdrawal may be obtained only upon a showing of good cause through a motion that
includes the client’s last known address.
Here, the Motion to Withdraw (Doc. 41) did not state whether Plaintiff consents to
Mr. Mayer’s withdrawal. The certificate of service for the Motion shows that the
document was mailed to Plaintiff on January 11, 2019. Id. at 3. In addition, the record
indicates that Mr. Mayer sent notice of the hearing to Plaintiff on January 15, 2019 and
that he similarly sent a copy of this Court’s order of January 17, 2019 (Doc. 44) to
Plaintiff and the Receiver on January 18, 2019, as directed. (Doc. 45).
During the hearing, Mr. Mayor stated he had communicated with Plaintiff, who is
currently incarcerated in the North Carolina prison system, but had not received a specific
position from her regarding his withdrawal. Subsequent to the hearing, the Court
received correspondence from Plaintiff in which Plaintiff expressed her consent. A copy
of that correspondence has been filed at the direction of the undersigned and appears on
the docket as Document 46.
Counsel for Defendants acknowledged the difficulty of the situation but urged the
Court, if it were inclined to grant Mr. Mayer’s Motion, not to allow Plaintiff an unlimited
amount of time to locate new counsel or otherwise to let the case languish, particularly
given the pendency of the Motion to Dismiss (Docs. 39, 40) by Defendant Wazan.
Having reviewed the record in this matter and received the arguments of counsel,
and having carefully considered the interests of Plaintiff, Defendants, Mr. Mayer, and the

overall interests of justice, the undersigned finds that the Motion (Doc. 41) should be
allowed.1
IT IS THEREFORE ORDERED THAT:
1. The Motion to Withdraw as Counsel (Doc. 41) is hereby GRANTED, and the
Clerk is respectfully DIRECTED to remove Mr. Mayer as counsel of record for
Plaintiff.
2. Mr. Mayer is DIRECTED to serve a copy of this Order upon Plaintiff and the
Receiver within five (5) days of the entry of this Order, and to file a notice of such
service promptly thereafter.
3. The deadline for Plaintiff to respond to the Motion to Dismiss by Defendant
Wazan is EXTENDED to and including April 5, 2019. Plaintiff is ADVISED
that should she wish to retain new counsel to represent her in this case she should
do so immediately in order to allow her new attorney time to prepare a response to
the pending Motion to Dismiss in advance of this deadline. Mr. Mayer is
DIRECTED to assist Plaintiff and her new counsel, if any, with the prompt and
orderly transfer of the representation as may be required by the North Carolina
Rules of Professional Conduct.
Signed: February 5, 2019

1

The Court does not find it necessary at this time to take action pursuant to Local Civil Rule 83.2 but
urges Mr. Mayer to continue seeking appropriate professional and personal support.