Opinion
C.A. No. 00-1256 (DRD).
January 22, 2001.
Thomas E. Redburn, Jr., Esq., LOWENSTEIN SANDLER PC, Roseland, N.J. Attorney for Plaintiff.
Joel N. Kreizman, Esq., EVANS, OSBORNE KREIZMAN, Ocean, N.J. Attorney for Defendants.
OPINION
This matter is before the court on the motion of Joel N. Kreizman, Esq. ("Kreizman") to withdraw his appearance as counsel for the defendants. For the reasons that follow, the motion is denied.
BACKGROUND
A preliminary injunction was entered in plaintiff's favor against the defendants on June 21, 2000. An order holding the defendants in contempt of court for violating the injunction (the "contempt order") was entered on October 13, 2000. The contempt order required the defendants to perform certain affirmative actions in order to alleviate and to remediate the damage their pre- and post-injunction conduct had caused the plaintiff.
The defendants refused to obey the contempt order. Accordingly, an order imposing monetary sanctions against the defendants for violating the contempt order (the "sanctions order") was entered on November 3, 2000.
The defendants have yet to comply with the contempt order or the sanctions order.
DISCUSSION
Kreizman seeks to withdraw his appearance as defendants' counsel. His motion to withdraw is supported by his affidavit, in which he avers under oath that defendants have changed their German counsel and have instructed Kreizman to do nothing further on defendants' behalf. Kreizman Affidavit, 11/29/00, ¶ 4, at 2. Defendants' German counsel (unnamed in Kreizman's affidavit) informed Kreizman that the defendants will not comply with the injunction, the contempt order, or the sanctions order, based upon German counsel's opinion that defendants are not bound thereby so long as service of the summons and complaint upon defendants has not been effected under the Hague Convention. Ibid.
See Fed.R.Civ.P. 4(f)(1). Plaintiff's counsel has orally and informally supplemented his certification in support of his opposition to Kreizman's motion to withdraw — wherein he stated that service upon the defendants in accordance with the Hague Convention was expected to occur imminently, Certification of Thomas E. Redburn, Jr., 12/26/00, ¶ 9, at 2 by informing the court that he has been orally informed that such service has been effected.
Though this matter has not yet been set down for trial, Kreizman must obtain leave of court to withdraw his appearance, as no other counsel for the defendants, including German counsel, has been substituted. Loc.R. Civ. P. 102.1. The decision whether or not to allow counsel to withdraw his appearance is remitted to the court's sound discretion, Rusinow v. Kamara, 920 F. Supp. 69, 71 (D.N.J. 1996), and is made by consideration of such factors as the reasons why withdrawal is sought, the prejudice withdrawal might cause other litigants, the harm withdrawal might cause to the administration of justice, and the degree to which withdrawal might delay resolution of the case. Ibid.
Without substitute counsel ready to enter an appearance on the defendants' behalf, the defendants' instruction to Kreizman to do nothing further on their behalf avails Kreizman nothing. Ohntrup v. Firearms Center, Inc., 802 F.2d 676, 678 (3rd Cir. 1986); Weintraub Bros. v. Attraction House Co., 1995 WL 234186, at *2, *4 (E.D.Pa.). This is an insufficient reason for granting leave to withdraw.
Defendants are a German corporation which may appear in federal court only through licensed counsel, Rowland v. California Mens' Colony, 506 U.S. 194, 202, 113 S.Ct. 716, 721, 121 L.Ed.2d 656 (1993) — and a German citizen. At the moment, the court's only means of communicating with these defendants is through Kreizman, their attorney. Defendants are foreign litigants who have heretofore behaved intractably and contumaciously in defying the injunction, contempt order, and sanctions order. Plaintiff would face the risk of severe prejudice were this court's only conduit to these defendants severed by Kreizman's withdrawal of his appearance; any hope of coercing the defendants into compliance would at least be temporarily dashed if not permanently lost. Ohntrup, 802 F.2d at 678; Weintraub Bros., 1995 WL 234186, at *4. So, too, the administration of justice — insuring that the plaintiff will no longer be harmed and that the court's authority will be respected and its orders will be vindicated and obeyed — hinges on maintaining communication with defendants through Kreizman. Kreizman must stay on to inform his clients of the evolution of the court proceedings and of the perils of their continued contumacy, as well as to inform the court of his clients' legal position and compliance vel non with the injunction, contempt order, and sanctions order. Ibid.
Kreizman's withdrawal, without the appearance of substitute counsel, would render the injunction, contempt order, and sanctions order risible and would plunge this case into limbo. The prosecution of the case, including resolution of the important threshold matters addressed by the injunction, contempt order, and sanctions order, would thereby be delayed without foreseeable end. This cannot be permitted.
If the defendants wish to challenge this court's personal jurisdiction over them, they may appear specially to lodge such a challenge through Kreizman or through appropriate substitute counsel. If they wish to challenge the sufficiency of process or the sufficiency of the service of process, so may they also lodge such challenges through Kreizman or through appropriate substitute counsel. But the defendants will not be allowed to make a mockery of these proceedings by simply directing Kreizman to withdraw from the fray.
Finally, it must be stated that nothing in this opinion should be construed as attribution or imputation of the defendants' wrongdoing to Kreizman.
CONCLUSION
For the foregoing reasons, Attorney Kreizman's motion to withdraw his appearance as defendants' counsel must be denied. An appropriate order shall enter.