Catamount Radiology, P.C. et al v. Bailey

Filing 70

MEMORANDUM AND ORDER granting 67 Motion to Withdraw as Attorney, Motion for Expedited Review, and Motion for Postponement of Depositions. Plaintiff is ordered to find replacement counsel and inform the Court by 9/9/2015 and comply with production of redacted financial documents and expert reports due by 8/11/2015 if not already done so. Signed by District Judge J. Garvan Murtha on 8/12/2015. (esb)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Catamount Radiology, P.C., and
Scott D. Smith, M.D.,

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Plaintiffs,
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v.
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Yvette Bailey, M.D.,
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Defendant.
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____________________________________:
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Yvette Bailey, M.D.,
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Counterclaim Plaintiff
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And Third-Party Plaintiff
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v.
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Scott D. Smith, M.D.; Catamount
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Radiology, P.C.; and Rebecca O’Berry,
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Counterclaim Defendants
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And Third-Party Defendant.
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____________________________________:

Case No. 1:14-cv-213

MEMORANDUM AND ORDER ON MOTION TO WITHDRAW, REQUEST FOR
EXPEDITED REVIEW, AND FOR POSTPONEMENT OF DEPOSITIONS
(Doc. 67)
On August 10, 2015, Defendant/Counterclaimant Yvette Bailey (“Bailey”) faxed the Court
an ex parte letter stating she has developed “irreconcilable differences” with her counsel, David
Bond, and requesting the Court “grant a four week extension of all proceedings and decisions, to
afford sufficient time . . . to select substitute counsel and to permit said substitute counsel to
familiarize himself or herself with the case, and to make any supplemental submissions that may be
necessary under the circumstances.” (Doc. 67-2.) Subsequently, Bond filed the pending motion to
withdraw. (Doc. 67.) Bailey asks the Court to either (1) postpone depositions and grant the motion

to withdraw, or (2) require Bailey engage new counsel by a set date and permit withdrawal at that
time. (Doc. 67, at 3.) Plaintiffs Catamount Radiology, P.C. (“Catamount”) and Scott D. Smith,
M.D. (“Smith”) do not oppose withdrawal of Bond as counsel, but do oppose Bailey’s request for a
four-week stay of discovery.1 (Doc. 68.) Catamount and Smith believe depositions scheduled for
August 17, 18, and 19 (Doc. 65) should go forward with Bond as counsel, and that Bond should be
replaced afterward. Bailey filed a reply on August 11, 2015. (Doc. 69.)
Catamount and Smith argue the cases cited in the motion to withdraw require a refusal to
pay fees, failure to communicate, or acrimony, and assert the present motion to withdraw is based
only on an assertion of irreconcilable differences. Catamount and Smith are incorrect -- an assertion
of irreconcilable differences may be sufficient to support a withdrawal of counsel. See Hallmark
Capital Corp. v. Red Rose Collection, Inc., No. 96-cv-2839, 1997 WL 661146, at *3 (S.D.N.Y. Oct.
21, 1997) (finding “satisfactory reasons” to permit plaintiff’s counsel’s withdrawal when plaintiff
“concedes that it has irreconcilable differences with its counsel”); Emile v. Browner, No. 95-cv3836, 1996 WL 724715, at *1 (S.D.N.Y. Dec. 17, 1996) (“When a client fails to pay legal fees, fails to
communicate or cooperate with the attorney, or indicates that she lacks confidence in and no longer
wishes to be represented by the attorney, and the attorney-client relationship has broken down,
these are more than sufficient reasons for counsel to be relieved.”) (emphasis added).
“[T]he Court may nevertheless consider the posture of the case and whether counsel's
withdrawal will result in any prejudice to [the opposing party] or have a negative impact on the
Court's calendar.” Emile, 1996 WL 724715, at *1. Catamount and Smith claim Bailey’s decision to
change counsel “appears quite clearly to be little more than an attempt to refuse to provide the
information and to appear for the depositions,” which “should not be allowed.” (Doc. 68, at 2.)

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Third-Party Defendant Rebecca O’Berry does not oppose the motion. See Doc. 67, at 3.
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But they give no indication they will be prejudiced by such an extension. A four-week delay of
depositions will not require postponement of a trial or a substantial delay in the discovery schedule.
Conversely, requiring Bailey to proceed with key depositions with Bond as her counsel when he will
not ultimately represent her at trial might very well prejudice Bailey.
Accordingly, Bailey’s motion (Doc. 67) is GRANTED. The Local Rules state “[a]n attorney
may not withdraw until: (1) replacement counsel has entered an appearance, or a party has declared
its pro se status . . .; (2) the attorney files a motion to withdraw; and (3) the court grants the motion
to withdraw.” Vt. D. L.R. 14(d). Bailey is ordered to find replacement counsel and so inform the
Court on or before September 9, 2015. Consistent with Local Rule 14(d), Bond will be permitted to
withdraw at the time Bailey engages replacement counsel or declares her pro se status. The
depositions of Bailey, Kenneth Romer, and Scott Smith shall be postponed until Bailey has either
engaged replacement counsel or declared her pro se status. To the extent this Order has issued
expeditiously, the request for expedited review is granted.
The Court assumes Bailey has complied with its order to produce redacted financial
documents and expert report by August 11, 2015. (Doc. 65.) If Bailey has not yet produced those
documents, she shall do so forthwith.
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 12th day of August, 2015.
/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge

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