Opinion
00 Civ. 9119 (THK)
July 24, 2001
MEMORANDUM OPINION AND ORDER
The parties in this breach of contract action have consented to trial before me, pursuant to 28 U.S.C. § 636 (c). Presently before the Court is a motion to withdraw as counsel brought pursuant to Local Civil Rule 1.4 of the Southern District of New York, by Jason. L. Schmidt, Esq., counsel of record for defendants Cook-N-Throw and Sam Mizrahi. No opposition to the motion has been received.
DISCUSSION
In support of his motion, Mr. Schmidt asserts that defendants have ignored his counsel and advice throughout the course of this litigation; defendants have instructed him to ignore or violate applicable discovery rules; despite his advice, defendants have failed to meet their commitments to the Court and plaintiff with regard to their discovery obligations and commitments they made in the course of settlement discussions; defendants are in substantial arrears in their payment of counsel's fees; defendants have ignored counsel's communications; and defendants have expressly told counsel to withdraw as their attorney.See Statement Pursuant To Local Civil Rule 1.10, dated June 11, 2001 ("Schmidt Statement"), ¶ 2. In short, Mr. Schmidt contends that there has been a communication breakdown between him and his clients and that, as a result, he can no longer effectively represent them. See id. ¶ 3. Defendants have submitted no opposition to their counsel's motion, and have not attempted to contradict his assertions in any way.
Rule 1.4 of the Civil Rules of this Court provides:
An attorney who has appeared as attorney of record for a party may be relieved or displaced only by order of the court and may not withdraw from a case without leave of the court granted by order. Such order may be granted only upon a showing by affidavit or otherwise of satisfactory reasons for withdrawal or displacement and the posture of the case, including its position, if any, on the calendar.
S.D.N.Y. Local Civ. R. 1.4.
In light of counsel's description of the breakdown of his relationship with his clients, which is uncontested, the Court sees no reason to deny counsel's motion for withdrawal. It is well established that lack of cooperation and communication by a client, and refusal to pay fees, are sufficient reasons for granting withdrawal. See Technology Express, Inc. v. FTF Business Systems Corp., No. 99 Civ. 11692 (GEL), 2000 WL 1877020, at *7 (S.D.N Y Dec. 26, 2000); Promotica of America, Inc. v. Johnson Grossfield, Inc., No. 98 Civ. 7414 (AJP), 2000 WL 424184, at **1-2 (S.D.N.Y. Apr. 18, 2000); Worldvision Enterprises, Inc. v. Ricklis Broadcasting Corp., No. 95 Civ. 10253 (HB) (NRB), 1996 WL 148340, at *1 (S.D.N.Y. Apr. 2, 1996); Seisay v. Compagnie Nationale Air France, No. 95 Civ. 7660 (JFK) (AJP), 1996 WL 38844, at *1 (S.D.N Y Feb. 1, 1996);Furlow v. City of New York, No. 90 Civ. 3956 (PKL), 1993 WL 88260, at *2 (S.D.N.Y. Mar. 22, 1993). Indeed, defendants have instructed counsel to cease representing them.
Accordingly, Mr. Schmidt's motion to withdraw as counsel for Cook-N-Throw and Sam Mizrahi is granted. Cook-N-Throw, as a corporation, may not proceed in this action pro se. See Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 201-02, 113 S. Ct. 716, 721 (1993); Pecarsky v. Galaxiworld.com Ltd., Nos. 00-7287, 00-7295, 00-7655, slip op. 3109, 3117 (2d Cir. July 13, 2001);Dial-A-Mattress Franchise Corp. v. Page, 880 F.2d 675, 677 (2d Cir. 1989); Dow Chem. Pac. Ltd. v. Rascator Maritime S.A., 782 F.2d 329, 336 (2d Cir. 1986); Souzhou Textiles Import Export v. Swell Fashions, Inc., No. 96 Civ. 1386 (BSJ), 1997 WL 13224, at *1 (S.D.N.Y. Jan. 15, 1997). Cook-N-Throw shall therefore be allowed until August 10, 2001 to retain new counsel. Failure to have an attorney enter a notice of appearance on its behalf by August 10, 2001 will result in the entry of a default judgment against Cook-N-Throw. Cf. Dow Chem. Pac. Ltd., 782
Defendant Mizrahi shall also have until August 10, 2001 to retain new counsel or to advise the Court and plaintiff as to whether he has chosen to proceed pro se.
F.2d at 336; Arch Assocs., Inc. v. HuAmerica Int'l, Inc., No. 93 Civ. 2168 (PKL), 1994 WL 319257, at *1 (S.D.N.Y. June 29, 1994);Farberware, Inc. v. Groben, No. 89 Civ. 6240 (PKL), 1991 WL 8506, at *2 (S.D.N.Y. Jan. 22, 1991).