Holley v. Wells Fargo Bank, N.A. et al

Filing 17

ORDER granting 16 Motion to Withdraw as Attorney. Attorney John Patrick Swallow terminated.(Signed by Judge Hilda G Tagle) Parties notified.(mserpa, 2)

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United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION CHARLES D. HOLLEY, Plaintiff, VS. WELLS FARGO BANK, N.A., et al, Defendants. § § § § § § § § September 08, 2017 David J. Bradley, Clerk CIVIL NO. 2:17-CV-00072 ORDER BE IT REMEMBERED that on September 8, 2017, the Court GRANTED Attorney John P. Swallow’s (“Swallow”) Unopposed Motion to Withdraw as Plaintiff’s attorney of record. See Dkt. No. 16. Swallow represents that he was hired by the Law Office of Vaughn L. Westheimer (“Westheimer”) to assist Westheimer in the preparation and filing of a Motion to Remand in the above-captioned case. See id. Westheimer was Plaintiff’s lead attorney when the case was removed to federal court on February 20, 2017, and Westheimer continues as Plaintiff’s lead attorney. See Dkt. No. 1, Exh. C at 2; Dkt. No. 12 at 5. At the time the case was removed, Westheimer was not admitted to practice before the Court, but Swallow was admitted. See Attorney Admission Reports for Vaughn Loran Westheimer & John Patrick Swallow, U.S. District Court for the Southern District of Texas, CM/ECF (https://ecf.txsd.uscourts.gov). Swallow represents that, for this reason, Westheimer hired him to file a Motion to Remand on Plaintiff’s behalf. See Dkt. No. 16. Since Westheimer has been admitted to practice before this Court, see Attorney Admission Report, Swallow states that his assistance is no longer required. See Dkt. No. 16. Westheimer and Defendants’ counsel are unopposed to the present Motion. See id. “An attorney may withdraw from representation only upon leave of the court and a showing of good cause and reasonable notice to the client.” Matter of Wynn, 889 F.2d 644, 646 (5th Cir. 1989). The withdrawing attorney bears the burden of 1/2 proving the existence of good cause for withdrawal. See Federal Trade Commission v. Intellipay, 828 F. Supp. 33, 34 (S.D. Tex. 1993) (“The record must generally reflect an appropriate basis for granting leave [to withdraw]; unsubstantiated claims are insufficient.”). Whether leave is granted is a matter within the trial court’s sound discretion. Wynn, 889 F.2d at 646. Swallow has shown good cause for withdrawal. Namely, Westheimer no longer requires his assistance and Westheimer will continue to represent Plaintiff. Moreover, Swallow’s withdrawal will cause no delays in this case. See S.D. TEX. L.R. 83.2 (“[N]o delay will be countenanced because of a change in counsel . . . .”). Although Swallow has not shown that he has provided reasonable notice of his withdrawal to Plaintiff, Swallow provided notice to Plaintiff’s lead attorney, who is unopposed to Swallow’s present Motion. See Dkt. No. 16. Because Plaintiff will not be prejudiced by Swallow’s withdrawal, the Court GRANTS Swallow’s Motion to Withdraw as Plaintiff’s attorney of record. SIGNED this 8th day of September, 2017. ___________________________________ Hilda Tagle Senior United States District Judge 2/2

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