Mifflinburg Telegraph, Inc. v. Criswell et al

Filing 78

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Matthew W. Brann on 5/29/15. (km)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MIFFLINBURG TELEGRAPH, INC., :
:
Plaintiff
:
:
v.
:
:
HEIDI CRISWELL, et al.,
:
:
Defendants
:

CIVIL NO. 4:14-CV-00612
(Judge Brann)

MEMORANDUM
May 29, 2015
Currently pending before the Court is a Motion to Withdraw as Counsel
filed by Counsel for the Defendants, Heidi Criswell, Darlene Sharp, Dale E.
Criswell, and Wildcat Publications, LLC (the “Clients”). (ECF No. 71). Plaintiff
concurs with the motion, and no defendants other than the Clients object to the
Motion. (ECF No. 76).
Middle District Local Rule 83.15 confers discretion upon district courts to
grant or deny a Motion to Withdraw where substitute counsel has not entered an
appearance. As the United States Court of Appeals for Third Circuit has noted,
“there is no multi-factor test that a district court must apply to decide a motion for
attorney withdrawal. Rules regarding attorney withdrawal are necessarily general
because of the context-laden nature of such determinations. The interests to be

considered will vary widely from case to case.” Ohntrup v. Makina Ve Kimya
Endustrisi Kurumu, 760 F.3d 290, 295 (3d Cir. 2014).
Counsel seeks to withdraw its appearance on behalf of the Clients due to
unpaid legal fees. (ECF No. 72). Counsel points out that the retainer agreement
signed by the Clients acknowledges that:
invoices are rendered monthly and are payable within 30 days. In the
event that [the] statements are not timely paid, or that payment terms
satisfactory to use are not established, [Counsel] reserve[s] the right to
renegotiate the terms of this agreement to terminate it and withdraw
from this or any representation of [the Clients], and/or pursue other
remedies.
Id. at Ex. C.
On May 30, 2014, Counsel sent an invoice to the Clients for $26,206.50. Id.
at Ex. D. Counsel asserts that, thereafter, “as early as July 2014 . . . Clients were
reminded on numerous occasions in writing and by telephone that they were
required to keep up with payments due to Counsel and that failure to do so would
result in Counsel’s motion to withdraw from the representation.” (ECF No. 72).
On the basis of these communications, the Clients submitted $10,500 in payments
to Counsel in September of 2014. Id. at Ex. D. In October 2014 Counsel applied
the entire $5,000 retainer toward the outstanding legal bill. Id. To date, Clients
have made monthly $500 payments toward their bill, resulting in payments totaling
$19,000. Id. Nevertheless, legal fees continue to accrue.

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Counsel asserts that “[t]he current financial condition of Clients and their
likely financial condition going forward make it unlikely that the outstanding
balance owed to Counsel will be paid or that additional fees and costs incurred in
the future will be paid.” Id. Although the Clients have paid $19,000 in legal fees,
to date approximately $45,166.86 remains unpaid. Id. The Clients acknowledge
the amounts unpaid, but note that they have been making regular payments towards
the balance, and assert that they are able to continue paying Counsel $1,000 per
month. Id. at Ex. E.
At this juncture, the most appropriate resolution of this issue is to allow
Counsel to withdraw from the case. Counsel has been placed in a difficult position
due to the Clients’ failure to timely pay their legal fees. Although the Clients have
made a good faith effort to pay the fees, and are paying as much as they
realistically can afford, the costs of litigation are far outstripping the Clients’
ability to pay those costs. Unfortunately, this leaves Counsel in the difficult
position of being forced to expend considerable time and resources without any
genuine assurances of payment for services rendered.
Furthermore, every document submitted in relation to this Motion indicates
that the relationship between Counsel and Clients is strained. In that vein, the
Clients’ letters indicate that they feel deceived by Counsel regarding alleged oral
assurances that some form of regular payment on the legal fees owed would be
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sufficient. (ECF No. 75, Ex. E). The Clients believe that Counsel is unwilling to
negotiate regarding payment, and stated that their refusal to accept security
interests or other form of assurances is “frustrating[.]” Id. Therefore, it may be
best that the Clients begin a clean slate with a new attorney.
The Court is not unmindful of the burden that the Clients will carry as a
result of Counsel’s decision to withdraw. Unfortunately, this is an extremely
difficult situation with no easy solution, although the balance of concerns in this
case militates toward granting Counsel’s request. Counsel will undoubtedly suffer
severe prejudice if they are forced to continue in their current capacity without an
assurance of payment for their efforts. Discovery is not yet complete, and
dispositive motions have not been submitted. A great deal of time would be
expended if Counsel is forced to submit dispositive motions, or respond to the
same upon completion of discovery.
On the other hand, the Clients will not suffer significant prejudice if Counsel
is allowed to withdraw. The case is still far from trial and, and as a result, there is
sufficient time for another attorney to enter the case and defend the Clients. There
will be some additional expenses incurred, as any new counsel will need to
familiarize him or herself with the case. Furthermore, granting the Motion to
Withdraw will delay the disposition of this case.

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Finally, because discovery concludes approximately one month from this
date, there would be some prejudice resulting if new counsel were forced to
comply with the discovery deadline. To rectify this, the Court will delay the
discovery deadline. The Court is also mindful that, as a general rule, a corporation
may only appear in federal court through licensed counsel. Rowland v. Cal. Men’s
Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 201–02 (1993).
Therefore, the Clients will be afforded sufficient time to locate replacement
counsel.
Consequently, Counsel’s Motion to Withdraw as Attorney for the Clients
will be granted. A separate Order will be issued.

BY THE COURT:
s/Matthew W. Brann
Matthew W. Brann
United States District Judge

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