Garcia-Herrera v. City of Salem et al

Filing 98

Order by Judge Anna J. Brown. Steven M. McCarthy is hereby relieved as attorney for Plaintiff on the condition that PLF repair counsel, Kathryn M. Pratt, files a Notice of Appearance, files a response to the Motion to Dismiss, and appears on Plaint iffs behalf at a hearing on the Motion to Dismiss. Ms. Pratts appearance will be limited to defending against the Motion to Dismiss. After that Motion is decided, Ms. Pratt has leave to seek to withdraw from Plaintiffsrepresentation. Plaintiffs opp osition to the Motion 92 to Dismiss is due no later than 2/21/2014; Defendants Reply is due 3/3/2014 and the Court will hear oral argument on the Motion at a time to be set. Plaintiff shall personally attend the hearing on this Motion. Court STRIKES trial date of 3/24/2014, and all other pretrial case-management deadlines. See attached 4 page Order for full text. Signed on 02/12/2014 by Judge Anna J. Brown. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

REUBEN ANTONIO GARCIA-HERRERA,
Plaintiff,

3:11-cv-00055-BR
ORDER

v.
CITY OF SALEM, et al.,
Defendants.
BROWN, Judge.
In its Order (#95) issued February 5, 2014, the Court set a
hearing to occur February 12, 2014, at 2:00 p.m., on Defendants’
Motion (#92) to Dismiss for failure "to prosecute this action and
by repeatedly ignoring Court Orders."

The Court ordered personal

appearances by Plaintiff, Plaintiff’s counsel, and Defendants’
counsel.
On February 11, 2014, shortly after 2:00 p.m., Plaintiff’s
counsel and Plaintiff appeared a day early for that hearing.
Because Defendants’ counsel was available by telephone, the Court
convened a hearing on the record to address, among other things,

1 - ORDER

a recent Declaration (#96) filed by Plaintiff’s counsel in
opposition to Defendants’ Motion in which counsel states it is
“nearly impossible for me to proceed in representing my client in
this case.”
As explained on the record, the Court construed the
Declaration as, among other things, a Motion by Plaintiff’s
counsel to withdraw from the matter.

Upon confirmation with

Plaintiff’s counsel that withdrawal was his intent and upon
explanation to Plaintiff that the Court concluded a potential
conflict of interest had arisen between Plaintiff and his counsel
arising from the appearance that counsel had failed to prosecute
the case, the Court concluded withdrawal would be appropriate
only if conflict-free counsel could be identified to file an
opposition to the merits of Defendants’ Motion to Dismiss on
Plaintiff’s behalf.
The Court contacted the Professional Liability Fund (PLF),
which provides liability insurance to Oregon lawyers who are
covered parties, to determine whether it would engage counsel to
represent Plaintiff for the limited purpose of defending against
Defendants’ Motion to Dismiss.

Upon learning such “repair”

counsel would be engaged by the PLF for this limited purpose, the
Court conditionally approved the withdrawal of Plaintiff’s
counsel, Steven M. McCarthy, as counsel for Plaintiff.

The Court

also obtained Plaintiff's consent to this limited substitution of

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counsel.
After the hearing, the Court was contacted by Attorney
Kathryn M. Pratt, retained by the PLF, who agreed to limited
representation of Plaintiff for the purpose of defending against
the Motion to Dismiss.
Based on the foregoing and for the reasons stated on the
record, the Court makes the following Order:
1.

Steven M. McCarthy is hereby relieved as attorney for

Plaintiff on the condition that PLF repair counsel, Kathryn M.
Pratt, files a Notice of Appearance, files a response to the
Motion to Dismiss, and appears on Plaintiff’s behalf at a hearing
on the Motion to Dismiss.

Ms. Pratt’s appearance will be limited

to defending against the Motion to Dismiss.

After that Motion is

decided, Ms. Pratt has leave to seek to withdraw from Plaintiff’s
representation.
2.

Plaintiff’s opposition to the Motion (#92) to Dismiss

is due no later than February 21, 2014, subject to any necessary
request for extension of time; Defendants’ Reply in further
support of the Motion is due no later than March 3, 2014, and the
Court will hear oral argument on the Motion at a time to be set
by the Clerk after conferral with counsel.

Plaintiff shall

personally attend the hearing on this Motion.
3.

The Clerk shall provide Ms. Pratt with contact

information for Plaintiff and for Mr. McCarthy.
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The Clerk shall

mail and email a copy of this Order to Plaintiff together with
contact information for Ms. Pratt.

The Clerk also shall email a

copy of this Order to Mr. Alan Beck at the PLF, [e-mail].
4.

As noted, after the Court rules on the Motion to

Dismiss, Ms. Pratt may move for withdrawal.

Regardless of the

disposition of the Motion to Dismiss, it is unfortunately
unavoidable that the Court must now strike the trial date
currently set for February 24, 2014, and all other pretrial casemanagement dates.

If the Court grants the Motion to Dismiss,

Plaintiff will have a right to appeal any dismissal order and any
other rulings he wishes to challenge, but Plaintiff will be
personally responsible to find his own counsel to represent him
for any appeal.

If the Court denies the Motion to Dismiss,

Plaintiff must be prepared to have new counsel ready to represent
him, and, if that occurs, the Court will consider what scheduling
orders to make in order to try this case at the earliest possible
date.

As noted on the record, the Court encourages Plaintiff to

seek to find new counsel now to represent him as soon as the
Motion to Dismiss is decided.
IT IS SO ORDERED.
DATED this 12th day of February.
/s/ Anna J. Brown
_____________________________
ANNA J. BROWN
United States District Judge
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