Clay v. Consol Pennsylvania Coal Company

Filing 292

MEMORANDUM OPINION AND ORDER CONFIRMING THE PRONOUNCED ORDER OF THIS COURT ON JULY 17, 2013 GRANTING DEFENDANTS MOTION TO WITHDRAW APPEARANCE OF DAVID J. DELFIANDRA, ESQ. re 275 Motion to Withdraw as Attorney. Attorney David J. DelFiandra terminated from case. Signed by Senior Judge Frederick P. Stamp, Jr. on 7/18/2013. (copy to all counsel of record via CM/ECF)(nmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TONY B. CLAY,
Plaintiff,
v.

Civil Action No. 5:12CV92
(STAMP)

CONSOL PENNSYLVANIA COAL
COMPANY, LLC,
a foreign limited liability
company and subsidiary of
Consol Energy, Inc.,
McELROY COAL COMPANY,
a foreign corporation and
subsidiary of Consol Energy, Inc.
and CONSOL ENERGY, INC.,
a foreign corporation,
Defendants.
MEMORANDUM OPINION AND ORDER
CONFIRMING THE PRONOUNCED ORDER
OF THIS COURT ON JULY 17, 2013
GRANTING DEFENDANTS’ MOTION TO WITHDRAW
APPEARANCE OF DAVID J. DELFIANDRA, ESQ.
I.
The

above-styled

civil

Background
action

involves

claims

of

racial

discrimination and retaliation under Title VII, a claim for breach
of the plaintiff’s employment agreement, and a claim for violation
of West Virginia’s Wage Payment and Collection Act.

Numerous

discovery motions have been filed in this case, with some motions
still pending.

Further, a motion for sanctions against the

defendants for an abuse of the discovery process is also pending.
The defendants by counsel filed a motion for the withdrawal of
one of their attorneys of record, David J. DelFiandra.

In support

of their motion, the defendants stated that Jeffrey A. Grove and
David L. Delk, Jr. have now entered appearances in this matter on
behalf of the defendant, and William A. Kolibash will also remain
as counsel of record in this action.

The plaintiff then filed a

response in opposition to the defendants’ motion arguing that they
will be severely prejudiced if the motion is granted before the
pending discovery motions are resolved and until there is a
representation

that

the

withdrawal

will

not

result

in

the

modification of the existing schedule.
For the reasons stated below, the defendants’ motion to
withdraw the appearance of David J. DelFiandra is granted.

This

Court notes, however, that by granting this motion it is not
relieving

counsel

of

responsibility

for

any

activities

he

participated in prior to withdrawal.1
II.

Discussion

Local Rule of General Practice 83.03 provides that “[n]o
attorney who has entered an appearance in any civil or criminal
action shall withdraw the appearance or have it stricken from the
record, except by order.”

In considering any motion to withdraw,

this

the

Court

may

consider

disruptive

impact

granting

the

withdrawal will have on the client and the prosecution of the case.

1

This point was noted by the Court at a hearing conducted on
July 17, 2013.
2

Patterson v. Gemini Org., Ltd., No. 99-1537, 2000 WL 1718542, at *2
(4th Cir. Nov. 17, 2000).
This Court recognizes plaintiff’s concerns regarding the
possible disruptions that withdrawal of counsel would have at this
stage of the litigation.
disruption

will

be

This Court, however, finds that such

minimal

due

to

two

factors.

First,

the

scheduled deadline for dispositive motions is now set for October
15, 2013 and trial is set for January 14, 2014.

Thus, the new

counsel shall have sufficient time to prepare for trial, without
the need for seeking any additional time.

Second, at a motions

hearing held July 17, 2013, defendants’ new counsel stated that
they needed no additional time to prepare for trial.

Therefore,

this Court is satisfied that no further disruption of the amended
scheduling order will be required as a result of this motion to
withdraw.
Further
regarding

this

possible

Court

recognizes

prejudice

that

the

may

plaintiff’s

result

from

concern
counsel’s

withdrawal because discovery motions that involve the withdrawing
counsel,
discovery

including
process,

a

motion

are

for

still

sanctions

pending.

for
Such

abuse

of

the

concerns

are

unnecessary, however, as by granting the motion to withdraw, this
Court is not relieving the defendants’ counsel of responsibility
for any activities that occurred prior to his withdrawal.

3

III.

Conclusion

For the above stated reasons, the defendants’ motion to
withdraw the appearance of David J. DelFiandra (ECF No. 275) is
hereby GRANTED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

July 18, 2013

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

4