Bowery v. Berkshire Life Insurance Company of America

Filing 76

MEMORANDUM AND ORDER. The Renewed Motion for Admission Pro Hac Vice [Doc. 68] is DENIED. The "Motion to Withdrawal [sic] and/or Otherwise Substitutes [sic] Counsel for Plaintiff," [Doc. 71] is GRANTED. The Clerk of Court is DIRECTED to enter Plaintiff's contact information in the docket and to mail a copy of this Memorandum and Order to Plaintiff. The parties SHALL APPEAR before the undersigned at 1:30 p.m. on July 24, 2014, for a hearing to address the Motion t o Enforce Settlement; and based upon their representations to the Court, Mr. Asbury and Mr. McLellan are ORDERED to appear at the hearing on July 24, 2014, prepared to offer testimony as appropriate, without being served with a subpoena or otherwise compelled to attend. Attorney Jason R McLellan terminated. Signed by Magistrate Judge C Clifford Shirley, Jr on 6/25/14. (JBR) (c/m to Stephen Bowery and Robert Asbury) Modified text on 6/25/2014 (JBR).

UNITED STATE DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
STEPHEN BOWERY,
Plaintiff,

v.
BERKSHIRE LIFE INS. CO. OF AMER.,
Defendant.

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No. 3:11-CV-03-RLJ-CCS

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02.
Now before the Court two motions relating to Plaintiff’s representation by counsel. First,
is the Renewed Motion for Admission Pro Hac Vice [Doc. 68], filed by Attorney Robert Asbury,
who intended to appear on behalf of the Plaintiff. This motion was filed just one day before the
Court’s hearing on April 15, 2014. At that hearing, the Plaintiff and Mr. Asbury represented to
the Court that Plaintiff did not desire for Mr. Asbury to continue as counsel in this matter.
Moreover, because the request to proceed pro hac vice had not yet been granted, Mr. Asbury was
not permitted to appear as counsel in this case. The Court found that it was not appropriate to
relieve Mr. Asbury of his duties as counsel at the hearing conducted on April 15, 2014, because
the issue of Plaintiff’s representation was complicated by further issues relating to Attorney
Jason McLellan.
Mr. McLellan had appeared as counsel for the Plaintiff in this case upon its removal from
state court in early 2011. To date, Mr. McLellan has not been granted leave to withdraw as
counsel for the Plaintiff. However, Mr. McLellan did not appear at the hearing conducted April

15, 2014. Plaintiff stated that he believed Mr. McLellan had not appeared because Plaintiff had
“fired” Mr. McLellan based upon a lack of responsiveness.
On April 18, 2014, the undersigned entered an Order directing that Mr. Asbury, Mr.
McLellan, and the Plaintiff appear before the undersigned on June 19, 2014, to address the
pending motions in this case and the issue of Plaintiff’s representation. On June 9, 2014, Mr.
McLellan filed a “Motion to Withdrawal [sic] and/or Otherwise Substitutes [sic] Counsel for
Plaintiff,” [Doc. 71]. Mr. McLellan represented that the Plaintiff had sent him a letter stating
that the Plaintiff desired for Mr. McLellan to withdraw as counsel in this matter. [Doc. 71-1].
Mr. Asbury, Mr. McLellan, and the Plaintiff all appeared before the undersigned on June
19, 2014. (Counsel for the Defendant was also present at the hearing.) The Court heard from
each of them at length. Both counsel moved the Court to permit them to withdraw from
representation and the Plaintiff agreed with their position. The Court determined that it was
appropriate to relieve Mr. McLellan of his duties as counsel in this matter and to deny Mr.
Asbury’s request to appear pro hac vice in this case. The Court admonished the Plaintiff of the
advantages of obtaining counsel, and despite the Defendant’s objection, the Court found that it
was appropriate to set off any argument on the Motion to Enforce Settlement to allow the
Plaintiff a period to attempt to obtain counsel. The Plaintiff was advised orally that he would be
proceeding pro se until he obtained substitute counsel. He was further advised that, if counsel
was not obtained prior to the next hearing, he would be required to proceed pro se at that
hearing.
Finally, the Court advised the Plaintiff, Mr. Asbury, and Mr. McLellan that the Court’s
decision was founded upon Local Rule 83.4 and was a determination of whether these attorneys
would represent Plaintiff in this Court in this case. The Court advised that the attorney-client

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relationship between Plaintiff and either of these attorneys outside of the Court is a matter
governed by their agreements.
Accordingly, and based upon the foregoing, it is ORDERED:
1. The Renewed Motion for Admission Pro Hac Vice [Doc. 68] is DENIED. Having
neither been admitted to practice in this Court and having not submitted a complete
request for admission pro hac vice, Mr. Asbury cannot appear in this Court;
2. The“Motion to Withdrawal [sic] and/or Otherwise Substitutes [sic] Counsel for Plaintiff,”
[Doc. 71] is GRANTED, and Mr. McLellan is RELIEVED of his duties as counsel in
this matter;
3. Plaintiff Stephen Bowery is DEEMED to be proceeding pro se;
4. The Clerk of Court is DIRECTED to enter Plaintiff’s contact information in the docket
and to mail a copy of this Memorandum and Order to Plaintiff;
5. The Plaintiff is hereby ADMONISHED that he is charged with litigating this case in a
manner consistent with the Federal Rules of Civil Procedure and applicable law and that
he is bound by all deadlines previously set by the Court;
6. The parties SHALL APPEAR before the undersigned at 1:30 p.m. on July 24, 2014, for
a hearing to address the Motion to Enforce Settlement; and
7. Based upon their representations to the Court, Mr. Asbury and Mr. McLellan are
ORDERED to appear at the hearing on July 24, 2014, prepared to offer testimony as
appropriate, without being served with a subpoena or otherwise compelled to attend.
IT IS SO ORDERED.
ENTER:
s/ C. Clifford Shirley, Jr.
United States Magistrate Judge
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