Opinion
CASE NO: 3:12-cv-0135-RJC-WGC
11-20-2012
AMCO INSURANCE COMPANY, an Iowa Corporation, Plaintiff, v. MICHAEL KRESSLER, and ELSA KRESSLER, Individually, RICHARD FELLING and WENDY FELLING, as individuals and in their capacity as Parents of G.F.; G.F., a minor, individually; JOSEPH PEARCE, as parent and guardian ad litem for A.P.; A.P. a minor, individually; and CHARLES HILL, an individual Defendants.
PHILLIP R. EMERSON, ESQ. J. SCOTT HENDERSON, ESQ. EMERSON & MANKE, PLLC Attorneys for Defendants, RICHARD FELLING and WENDY FELLING
PHILLIP R. EMERSON, ESQ.
J. SCOTT HENDERSON, ESQ.
EMERSON & MANKE, PLLC
Attorneys for Defendants,
RICHARD FELLING and
WENDY FELLING
EMERSON AND MANKE'S MOTION FOR LEAVE OF COURT TO WITHDRAW AS
COUNSEL OF RECORD FOR RICHARD AND WENDY FELLING
Counsel for Defendants, RICHARD and WENDY FELLING, comes before the Court and requests that they be permitted to withdraw from this matter pursuant to LR IA 10-6. This Motion is based upon the following memorandum of points and authorities, plus any and all papers and pleadings on file herein.
MEMORANDUM OF POINTS AND AUTHORITIES
I.
FACTUAL/PROCEDURAL BACKGROUND
This is a declaratory action arising out of a motor vehicle accident which occurred on June 18, 2010. Defendant GARRETT FELLING was driving a vehicle owned by Defendants RICHARD and WENDY FELLING. ASHLEY PEARCE sustained personal injury as a result of this accident, and has filed a lawsuit in Washoe District Court against several parties, including the FELLINGS. The FELLINGS' insurance carrier retained Emerson and Manke, PLLC, to represent the FELLINGS in the Washoe District Court matter. This matter is currently pending, with discovery having only recently begun.
Emerson and Manke, PLLC, was served with this declaratory action. Out of abundance of caution, and to protect its clients' interests and rights, Emerson and Manke, PLLC filed an Answer to the action. Counsel has since confirmed with the FELLINGS' insurance carrier that the insurance policy which was active at the time of the subject accident will not provide a defense for the federal decretory action, only the Washoe District Court action. As such, Emerson and Manke, PLLC, seeks to withdraw from this matter as counsel of record for the FELLINGS.
II.
LEGAL ARGUMENT
LR IA 10-6(b) governs withdrawal of counsel after making an appearance. It reads as follows:
No attorney may withdraw after appearing in a case except by leave of court after notice served on the affected client and opposing counsel.
LR IA 10-6(e) governs approval of stipulations to substitute or withdrawal of counsel:
Except for good cause shown, no withdrawal or substitution shall be approved if delay of discovery, the trial or any hearing in the case would result. Where delay would result, the papers seeking leave of court for the withdrawal or substitution must request specific relief from the scheduled trial or hearing. If a trial setting has been made, an additional copy of the moving parties shall be provided to the clerk for immediate delivery to the assigned district judge, bankruptcy judge, or magistrate judge.
This case is new. No discovery has been conducted; indeed, the parties have not yet met to discuss a potential discovery plan. Additionally, this matter has not been set for trial. As such, permitting Emerson and Manke, PLLC to withdraw will in no way delay the proceedings. Therefore, the withdrawal does not conflict with LR IA 10-6(e).
As noted above, Emerson and Manke, PLLC filed an Answer in this matter out of an abundance of caution and to ensure the FELLINGS' interests and rights were protected. Thereafter, counsel was advised by the FELLINGSS' insurance carrier that the insurance policy would not provide a defense for the declaratory action. The FELLINGS have been advised of this occurrence, and as the Court can see, they were served with this Motion.
III.
CONCLUSION
For the reasons stated above, Emerson and Manke, PLLC respectfully request this Honorable Court grant them leave to withdraw as counsel of record for RICHARD and WENDY FELLING.
EMERSON & MANKE, PLLC
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PHILLIP R. EMERSON, ESQ.
Nevada Bar No. 5940
J. SCOTT HENDERSON, ESQ.
Nevada Bar No. 9832
1055 Whitney Ranch Drive, Suite 120
Henderson, Nevada 89014
Attorneys for Defendants,
RICHARD FELLING and
WENDY FELLING
ORDER
IT IS SO ORDERED.
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UNITED STATES MAGISTRATE JUDGE