Summary
granting motion to withdraw as counsel where counsel's law firm dissolved
Summary of this case from Sotanski v. Hsbc Bank Usa, N.A.Opinion
Case Nos. 98-4210-RDR, 98-4209-RDR.
December 28, 2000.
MEMORANDUM AND ORDER
This matter is presently before the court upon plaintiffs' counsels' motions to withdraw. Having carefully reviewed the background of this case, the court is now prepared to rule.
These cases were filed by the law firm of Myers Myers, L.L.C. on behalf of the plaintiffs on November 22, 1998. The complaints were signed by Cheryl D. Myers and Michael B. Myers. The cases were subsequently consolidated. The recent history of these cases was recounted by the court in an order on October 2, 2000 as follows:
On June 21, 2000, the magistrate held the final pretrial conference in this case. At that time, he allowed the parties until July 14, 2000 to file summary judgment motions. On July 14, 2000, the defendant filed a motion for summary judgment. On the same day, plaintiffs filed a motion for extension of time to file their respective motions for summary judgment. In this motion, they sought an extension until January 18, 2000 to file the motions for summary judgment because their counsel was busy with other matters. They noted that defense counsel had been contacted and did not object to this request.
On July 18, 2000, plaintiffs filed another motion for extension of time to file motions for summary judgment. In this motion, they sought an extension of time to file their respective summary judgment motions until fifteen days after the court rules on plaintiffs' motion for sanctions, or in the alternative, until the defendant withdraws or amends its motion for summary judgment. Plaintiffs suggested that the defendant's motion for summary judgment was so fraught with inaccurate statements of law that a motion for sanctions pursuant to Fed.R.Civ.P. 11 was necessary. Plaintiffs thus contended that, in the interests of judicial economy, and reduction of attorney fees and costs to the plaintiffs, an extension was necessary to file their respective motions for summary judgment until a decision was reached on the motion for sanctions or until the defendant withdraws or amends its motion for summary judgment.
On July 27, 2000, plaintiffs filed yet another motion for extension of time. This time plaintiffs sought a one-day extension to July 28, 2000 in which to file their motion for sanctions upon the defendant. They asserted that they were unable to timely file the motion because (1) their counsel had been involved in the completion of a brief in another case; (2) their counsel's computer network had experienced an "unanticipated shut down"; (3) their counsel had an ill employee.
On August 3, 2000, defendant filed a memorandum in opposition to the plaintiff's request for an extension of time filed on July 18, 2000. In this memorandum, defendant vigorously opposed the plaintiffs' motion for extension of time. The defendant contended that plaintiffs had not demonstrated good cause for the requested extension. The defendant pointed to the past history of this case and to the actions of plaintiffs' counsel in other cases.
Plaintiffs filed another motion for extension of time on August 3, 2000. This time they sought more time to file their response to defendant's motion for summary judgment. They sought an extension of thirty days after the court rules on plaintiff's motion for sanctions or, in the alternative, until defendant withdrew or amended its motion for summary judgment. Plaintiffs raised arguments similar to those raised in their motion for extension of time filed on July 18, 2000. The defendant responded to this motion on August 16, 2000, again vigorously opposing it for the reasons stated in their response filed on August 3, 2000. The defendant also argued that the court should consider its motion for summary judgment as uncontested due to plaintiffs' failure to file a timely response.
On August 18, 2000, plaintiffs filed their motion for sanctions. Plaintiffs suggest that the court should impose sanctions because the defendant, in its motion for summary judgment, has included arguments and defenses that are not warranted by existing law. Specifically, plaintiffs assert that the defendant in its memorandum in support of its motion for summary judgment has (1) frivolously maintained that Kansas law states that a diversion agreement constitutes an admission of guilt; (2) failed to include information that the statute of limitations for criminal prosecution on eavesdropping expired on September 14, 1998; and (3) failed to include information that defendant's counterclaim is barred by the statute of limitations.
The court denied plaintiffs' motions for sanctions, denied plaintiffs' motions for additional time to file motions for summary judgment, and allowed plaintiffs twenty days from the date of the order to respond to defendant's motion for summary judgment. The court indicated that plaintiffs would not be allowed any additional time beyond that period.
On October 19, 2000, Michael B. Myers of Michael B. Myers, L.L.C. filed an entry of appearance on behalf of plaintiffs and sought another extension of time. In the motion, Myers sought additional time due to the dissolution of Myers Myers, L.L.C. On October 20, 2000 the court, recognizing the extraordinary circumstances and seeking to avoid any prejudice to the plaintiffs, granted the motion. At that time, the court hoped that these matters would be proceeding to a prompt conclusion.
On November 11, 2000, Myers Myers, L.L.C. by Michael B. Myers and Michael B. Myers, L.L.C. by Michael B. Myers filed a motion to withdraw. In the motion, Michael B. Myers noted that (1) the law firm of Myers Myers, L.L.C. had dissolved; (2) Cheryl D. Myers was taking a sabbatical from the active practice of law; and (3) he was continuing with a reduced caseload. He further noted that he had had difficulty maintaining contact with the plaintiffs in these cases. He stated that these plaintiffs had repeatedly missed appointments with him. He asserted that withdrawal was necessary. In this motion and in another motion for extension of time, he asked the court to grant plaintiffs ninety days from the date of the order allowing withdrawal to find other counsel and thirty days thereafter to file a response to defendant's motion for summary judgment. On December 7, 2000, Michael B. Myers filed certified mail receipts with the court indicating that the motion to withdraw had been received by the plaintiffs. On December 12, 2000, Cheryl D. Myers filed a motion to withdraw. In her motion, she noted that the law firm of Myers Myers, L.L.C. has been dissolved and that she has not rendered any legal services to the plaintiffs in these cases since that dissolution. She has informed Michael B. Myers that she does not intend to represent the plaintiffs in these cases any longer. She has sent letters to the plaintiffs indicating that she is taking a sabbatical from her law practice. On December 18, 2000, Cheryl D. Myers filed certified mail receipts with the court indicating that the motion to withdraw had been received by the plaintiffs.
The defendant filed a response indicating that it does not object to the withdrawal of Michael B. Myers because Cheryl D. Myers remains to represent the plaintiffs. This response was filed prior to the filing of the motion to withdraw by Cheryl D. Myers. The defendant does object to the other requests made by Michael B. Myers in the motion to withdraw and the motion for extension of time. The defendant contends that the time has come to resolve the pending motion for summary judgment.
With this background in mind, the court shall proceed to the motions to withdraw. The court shall allow Michael B. Myers and Cheryl D. Myers to withdraw from this case. Each has now fully complied with D.Kan. Rule 83.5.5.
Prior to ruling on the motions for extension of time, the court intends to issue a show cause order to the plaintiffs in these cases. Based upon the information received in the motion to withdraw filed by Michael B. Myers, the court has some concern about the desire of the plaintiffs to pursue these cases. The court shall direct these plaintiffs to show cause to the court in writing on or before January 10, 2001 why these cases should not be dismissed for lack of prosecution. Plaintiffs should inform the court whether they intend to pursue these cases and how they intend to prosecute them, i.e., either pro se or through counsel. If they intend to use counsel to represent themselves, then they need to inform the court what steps they have taken to find counsel and when that counsel will begin representation. Any new counsel should be informed that the court intends to offer a rather limited time period to respond to the pending motions for summary judgment given the past history in these cases.
IT IS THEREFORE ORDERED that the motion to withdraw of Michael B. Myers (Doc. # 177) be hereby granted. Michael B. Myers is allowed to withdraw as counsel for the plaintiffs in these cases.
IT IS FURTHER ORDERED that the motion to withdraw of Cheryl D. Myers (Doc. # 182) be hereby granted. Cheryl D. Myers is allowed to withdraw as counsel for the plaintiffs in these cases.
IT IS FURTHER ORDERED that Donald Crews and Harry Stewart show cause to the court in writing on or before January 10, 2001 why their respective case should not be dismissed for lack of prosecution. Plaintiffs should inform the court whether they intend to pursue these cases and how they intend to prosecute them, i.e., either pro se or through counsel. If they intend to use counsel to represent themselves, then they need to inform the court what steps they have taken to find counsel and when that counsel will begin representation. Any new counsel should be informed that the court intends to offer a rather limited time period to respond to the pending motions for summary judgment given the past history in these cases.
IT IS FURTHER ORDERED that plaintiffs' motion for extension of time (Doc. # 178) be held in abeyance pending a response from the plaintiffs to the aforementioned order to show cause.
IT IS SO ORDERED.