Opinion
15-cv-6049 (JSR)
09-30-2020
Manuel DE JESUS ROSARIO, Plaintiff, v. MIS HIJOS DELI CORP., Palma Grocery Corp., 251 E. 123rd St. Realty, LLC, Jose Palma, Leonida Collado, and Junior Palma, Defendants.
Steven Benjamin Ross, Law Office of Steven B. Ross, Eric Peter Dawson, Ross & Asmar LLC, New York, NY, for Plaintiff. Argilio Rodriguez, Rodriguez Law, P.C., Martin E. Restituyo, Law Offices of Martin E. Restituyo, P.C., New York, NY, for Defendants.
Steven Benjamin Ross, Law Office of Steven B. Ross, Eric Peter Dawson, Ross & Asmar LLC, New York, NY, for Plaintiff.
Argilio Rodriguez, Rodriguez Law, P.C., Martin E. Restituyo, Law Offices of Martin E. Restituyo, P.C., New York, NY, for Defendants.
MEMORANDUM ORDER
JED S. RAKOFF, U.S.D.J.
Now before the Court is the motion of Martin Restituyo, Esq., and Argilio Rodriguez, Esq., to withdraw as counsel of record for defendants. For the reasons set forth below, the Court grants the motion, on the condition that they provide the Court and plaintiff with email and physical address information at which the individual defendants have agreed to accept service of all papers.
I. Background
Familiarity with the general background to this case is here assumed. As relevant here, on August 3, 2015, plaintiff Manuel de Jesus Rosario brought this action against defendants Mis Hijos Deli Corp., Palma Grocery Corp., 251 E. 123rd St. Realty, LLC, Jose Palma, Leonida Collado, and Junior Palma, claiming that during his time as an employee for defendants, defendants failed to pay the minimum wage, overtime pay, and spread of hours pay required by federal and state law. Martin Restituyo, Esq., and Argilio Rodriguez, Esq., (hereinafter "Defense Counsel"), have represented defendants since April 2016 and August 2016, respectively. Dkt. Nos. 38 & 54. Defense Counsel represented defendants through discovery, summary judgment, and a jury trial.
On March 3, 2020, after the jury trial, the Court entered judgment against defendants and in favor plaintiff in the amount of $89,670.35. Dkt. Nos. 157 & 162. On May 22, 2020, the Court awarded attorneys’ fees to plaintiff in the amount $154,536.76 and directed the Clerk of the Court to close the case. Dkt. No. 174.
On May 28, 2020, Defense Counsel notified defendants via email that the Court had granted plaintiff's request for attorneys’ fees. Declaration of Argilio Rodriguez in Support of the Motion to Withdraw as Counsel of Record for Defendants ("Rodriguez Decl."), Dkt. No. 180, ¶ 7. Defense Counsel further informed defendants that their representation in the matter had concluded. Email from Defense Counsel to Defendants dated May 28, 2020, Dkt. No. 180-1.
Notwithstanding Defense Counsel's message to their clients that their representation had ended in May 2020, Mr. Rodriguez participated in a telephone conference with the Court on August 24, 2020, during which conference plaintiff requested that the Court issue a judgment on attorneys’ fees, which was omitted from the Court's Memorandum Order dated May 22, 2020. The Court issued such an Order that same day. Dkt. No. 176.
On September 10, 2020, Defense Counsel and counsel for plaintiff participated in another telephone conference with the Court, during which conference counsel for plaintiff sought leave to file a motion for contempt against certain defendants for allegedly transferring property in violation of a Court Order. During that conference, Defense Counsel explained to the Court that they believed their representation had ended in May 2020. Defense Counsel conceded, however, that they had not submitted a motion to withdraw from the case.
Accordingly, the Court granted leave to Defense Counsel to move to withdraw from the case. On September 14, 2020, Defense Counsel filed their motion to withdraw. Dkt. No. 178. Plaintiff opposes. Dkt. No. 187.
The Court also granted leave to plaintiff to move for contempt against certain defendants. Plaintiff filed that motion on September 14, 2020. Dkt. No. 182. Pursuant to the Court's Order dated September 25, 2020, Dkt. No. 189, the Court sets the briefing schedule for plaintiff's motion for contempt at the close of this Order.
II. Analysis
Local Civil Rule 1.4 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 an 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.
In considering whether to grant a motion to dismiss, district courts must analyze two factors: "the reasons for withdrawal and the impact of the withdrawal on the timing of the proceeding." Milltex Group Inc. v. Gossard & Berlei Ltd., No. 15-CV-10002 (RA), 2017 WL 9771811 at *1 (S.D.N.Y. Apr. 10, 2017). It well-settled, however, that a court has "considerable discretion in deciding a motion for withdrawal of counsel" and can impose conditions before allowing counsel to do so. See SEC v. Pentagon Capital Mgt. PLC, No. 08-CV-3324, 2013 WL 5815374, at *3-4 (S.D.N.Y. Oct. 29, 2013).
A. Reason for Withdrawal
Defense Counsel offer two reasons to justify their withdrawal. First, they contend that their representation ended in May 2020, when the Court granted plaintiff's motion for attorneys’ fees and closed the case. Memorandum of Law in Support of Motion to Withdraw as Counsel of Record for Defendants ("Def. Mem."), Dkt. No. 179, at 2. But, as plaintiff point outs, Mr. Rodriguez took part in a conference call as counsel for defendant on plaintiff's request for entry of judgment for attorneys’ fees on August 24, 2020. Declaration of Steven B. Ross in Opposition to Motion to Withdraw ("Ross Decl."), Dkt. No. 187, ¶ 4. "At no time during that call did counsel state he no longer represented defendants." Id. The Court agrees with plaintiff and rejects Defense Counsel's unsupported proposition that a motion to withdraw becomes unnecessary during post-judgement motion practice, especially given that Defense Counsel has already appeared for their client during post-judgment proceedings.
Second, Defense Counsel argues that defendants have not paid for portions of the work already done and "will not pay for any subsequent legal work [Defense Counsel] would perform on Defendant's behalf." Def. Mem. at 3. "[N]on-payment of legal fees is a valid basis for granting a motion to withdraw pursuant to Local Civil Rule 1.4." Milltex, 2017 WL 9771811, at *1. In response, plaintiff complains that while Defense Counsel's stated reason for seeking to be relieved is non-payment by defendants, their motion "did not include any communications between counsel and their clients regarding payment, and did not include any invoices or time statements reflecting any amounts due." Ross Decl. ¶ 3. However, in light of Defense Counsel's sworn representation to the Court that their clients have not paid and will not pay attorneys’ fees, the Court finds that Defense Counsel have provided sufficient grounds for withdrawal from the case.
B. Impact of Withdrawal on the Proceedings
"In addition to considering the reasons for withdrawal, district courts also consider whether the prosecution of the suit is likely to be disrupted by the withdrawal of counsel." Bruce Lee Enterprises, LLC v. A.V.E.L.A., Inc., No. 10-cv-2333 (MEA), 2014 WL 1087934, at *2 (S.D.N.Y. Mar. 19, 2014). On this basis, courts sometimes deny motions to withdraw where, for example, the case is on the verge of trial. See id. (collecting cases). Here, as Defense Counsel point out, the case is in post-judgment proceedings, and the only motion pending before the Court - other than the instant motion to withdraw - is plaintiff's motion for contempt. Because that motion has not even been fully briefed, the Court finds that the proceedings would not be unduly disrupted by the withdrawal of Defense Counsel.
Plaintiff contends, nevertheless, that he would be "prejudiced" in two ways by the withdrawal of Defense Counsel. First, plaintiff argues that, as part of his motion for contempt, he is seeking discovery of communications between defendants and Defense Counsel to ascertain Defense Counsel's knowledge of and involvement in the alleged fraudulent transfer. Ross Decl. ¶ 7. But, as Defense Counsel persuasively respond, this information could be acquired directly from the defendants. And even if defendants refused to turn it over, the Court could compel Defense Counsel to produce these communications regardless of whether they still represent defendants. Reply Declaration of Argilio Rodriguez in Further Support of Motion to Withdraw as Counsel of Record for Defendants ("Rodriguez Reply Dec."), Dkt. No. 188, ¶ 6.
Second, plaintiff contends that he would be prejudiced in his collection efforts on his judgments. Ross Decl. ¶ 9. Plaintiff alleges that one of the defendants – Jose Palma – is in the Dominican Republic and "serving him or providing notice to him if he is suddenly without counsel in this matter would force plaintiff to incur even further costs and expenses to enforce his rights." Id. ¶ 11.
This a legitimate concern given that, as mentioned, plaintiff is currently seeking to hold certain defendants, including Palma, in contempt. But this does not warrant denying Defense Counsel's well-supported motion to withdraw. Instead, the Court will grant the motion to withdraw but impose as a condition precedent to such withdrawal that Defense Counsel provide the Court and plaintiff with email and physical address information at which individual defendants have agreed to accept service of all papers.
When but only when that condition is satisfied, Defense Counsel will be deemed to have withdrawn from the case. To ensure that defendants have adequate time to oppose plaintiff's pending motion for contempt, the Court grants defendants until October 29, 2020 either to oppose the motion pro se or to retain and respond through new counsel. Any reply by plaintiff will be due November 12, 2020.
The Court notes that a corporate defendant, like 251 E. 123rd St. Realty, LLC, cannot represent itself pro se and can only respond to plaintiff's motion by and through counsel.
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SO ORDERED.