Delivuk et al v. Oberg

Filing 14

ORDER CONCERNING 12 MOTION to Withdraw as Attorney AND FOR ENLARGEMENT OF TIME filed by Fedja Delivuk. Signed by U.S. District Judge Roberto A. Lange on 11/8/18. (SKK)

Case 4:17-cv-04166-RAL Document 14 Filed 11/08/18 Page 1 of 3 PageID #: 59

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

FEDJA DELIVUK and MICA DELIVUK,

4:17-CV-4166-RAL

Plaintiffs,
ORDER CONCERNING MOTION TO
WITHDRAW

vs.

DERALD L. OBERG,
Defendant.

This case arises out ofa May 2017 semi-truck accident. Doc. 1-3. Plaintiffs'attomey filed
a motion to withdraw asking this Court to give the plaintiffs sixty days to find substitute counsel
and to stay all proceedings during that period. Doc. 12. Defendant filed a response stating that
efforts to obtain medical records and take depositions have been delayed by a lack of response
from the Plaintiffs. Doc. 13. Concerned that discovery will become even more difficult if
Plaintiffs' counsel is allowed to withdraw, Defendant asks this Court to either 1) dismiss the case
without prejudice immediately; or 2) give the Plaintiffs sixty days to advise the Court of new

counsel representing them and dismiss the case without prejudice if they fail to do so.
The motion to withdraw filed by Plaintiffs' attomey appears to be deficient in not revealing
notice given to the clients consistent with the mles of this Court. This Court's Local Rules
conceming withdrawal of counsel without substitution of new counsel, which is what Plaintiffs'
attomey seeks, provide:

Case 4:17-cv-04166-RAL Document 14 Filed 11/08/18 Page 2 of 3 PageID #: 60

Withdrawal without substitution may be granted only upon motion,
for good cause shown. Notice ofthe motion must be provided to the
client by the withdrawing attorney.

D.S.D. Civ. LR 83.7(C). Plaintiffs' attorney's one-page motion does not mention anything about
notice ofthe motion to withdraw being provided to his clients. Doc. 12. The page attached to the
motion contains a certificate of service attesting to service only on the Defendant's attorney.

Nothing in the CM/ECF record in this case reflects notice of the motion to withdraw being
provided to Plaintiffs themselves.
In terms of the "good cause" requirement of D.S.D. Civ. LR 83.7(C), the American Bar

Association(ABA)Model Code of Professional Conduct as adopted by South Dakota guides the
determination of what constitutes "good cause." S^ Hakim v. Leonhardt, 126 F. App'x 25, 26

(2d Cir. 2005) (referring to ABA Model Code provisions in evaluating counsel's conflict of
interest); Whiting v. Lacara. 187F.3d317,321 (2d Cir. 1999)(per curiam). Rule 1.16 ofthe South
Dakota Rules of Professional Conduct covers terminating representation:

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where
representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the Rules of Professional conduct
or other law;

(2) the lawyer's physical or mental condition materially impairs the lawyer's ability
to represent the client; or
(3) the lawyer is discharged.

(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests
ofthe client;

(2) the client persists in a course of action involving the lawyer's services that the
lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with
which the lawyer has a fundamental disagreement;

(5) the client fails substantially to fulfill an obligation to the lawyer regarding the
lawyer's services and has been given reasonable warning that the lawyer will
withdraw unless the obligation is fulfilled;

(6) the representation will result in an unreasonable financial burden on the lawyer
or has been rendered unreasonably difficult by the client; or

Case 4:17-cv-04166-RAL Document 14 Filed 11/08/18 Page 3 of 3 PageID #: 61

(7) other good cause for withdrawal exists.

Here, Plaintiffs' attorney cites Rule 1.16(b)(7)but does not explain why good cause exists.

This Court understands why an attorney would be reluctant to elaborate on cause for withdrawal,
but some slightly less obtuse explanation should be given. In any event, Plaintiffs' attorney must
show that notice ofthe motion has been provided to Plaintiffs and must furnish Plaintiffs' contact

information for the Court and Defendant to sCTve her with pleadings as Plaintiffs' attomey's
withdrawal would leave them to proceed pro se with the case.
Therefore, it is hereby

ORDERED that ruling is deferred on the pending motion and that Plaintiffs' attomey file

within fourteen (14)calendar days of this Order an affidavit verifying that notice was or is being
provided to Plaintiffs as well as Plaintiffs' address and telephone number for ptnpose ofthe Court
and Defendant contacting and serving Plaintiffs with pleadings. It is further

ORDERED that Defendant may file a motion to compel discovery and for sanctions if
cause exists, but that Plaintiffs are entitled to proceed pro se ifthey choose,though not entitled to
ignore discovery obligations.

DATED this^^day of November,2018.
BY THE COURT:

ROBERTO A. LAN(
UNITED STATES DISTRICT JUDGE