The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge
This case has been referred to me by Hon. Richard J. Arcara to decide all nondispositive motions, hear and report on all dispositive motions, and otherwise supervise pretrial proceedings [6, 58].*fn1 Before me are plaintiff's pro se motion to vacate the Stipulation of Dismissal and reinstate this action , and the cross-motion by Christina A. Agola, Attorneys and Counselors at Law, PLLC to withdraw as plaintiff's attorneys . Following oral argument of the motions on April 27, 2012 , I scheduled an evidentiary hearing for May 23, 2012, and stated that a written decision would follow.
For the parties' benefit, this Interim Decision and Order sets forth my view of the proceedings at the present time. Should any party (or counsel) wish to argue why I should not proceed in the manner indicated, they may make a written submission by May 15, 2012.
Plaintiff commenced this action on November 10, 2009 , alleging racial discrimination and retaliation in violation of 42 U.S.C. §1981 and the New York State Human Rights Law (N. Y. Executive Law §290). On November 4, 2011, defendants moved for summary judgment . At plaintiff's request, his deadline for responding to that motion was extended several times [43, 46, 49], with the final deadline being March 23, 2012 [49, 50]. Plaintiff did not file a response by that deadline.
On March 30, 2012 the parties filed a Stipulation of Dismissal , signed by counsel for all parties, stating that the action "is dismissed in its entirety, with each party to bear its own costs and attorneys' fees". By Text Order dated March 31, 2012 , Judge Arcara approved the Stipulation and ordered the Clerk of this court to close the case.
On April 5, 2012 plaintiff moved to vacate the Stipulation of Dismissal , alleging that he "did not consent to Attorney Christina A. Agola unilateral bias decision to submit a Stipulation of Dismissal, Stipulation of Discontinuance". Rankin Affidavit , p. 2. Ms. Agola cross-moves for leave to withdraw as plaintiff's attorney "in light of the misrepresentations made by Mr. Rankin". Agola Declaration [56-1], ¶2. She states that her "office conducted a near two hour telephonic meeting with [plaintiff] on March 23, 2012 wherein we discussed the Defendant's Motion for Summary Judgment, and Plaintiff's response to the same . . . . Following all of that, Mr. Rankin expressly authorized this office to agree to a voluntary discontinuance of this matter provided that Defendant would agree to waive its claim for costs and/or fees". Id., ¶¶6, 8.
Defendants "vehemently oppose Plainitff's motion as baseless drivel that must be dismissed", arguing that "Federal Rule of Civil Procedure 60(b) sets forth several bases for setting aside an order; however, Plaintiff has not offered a droplet of proof to demonstrate that any of those bases exist in this case". Defendants' Memorandum of Law , p. 3.
A. Plaintiff's Motion to Vacate the Stipulation of Dismissal
Defendants argue that if plaintiff did not authorize Ms. Agola to discontinue the action, his "recourse is neither against Defendants nor pursuant to Fed. R. Civ. P. 60(b). In that case, Plaintiff's only recourse would be in a claim against the individual or organization that incorrectly reported Plainitff's consent to the voluntary dismissal of this case." Defendants' Memorandum of Law , p. 7, n. 2.
At first glance, that argument appears compelling. "Normally, the conduct of an attorney is imputed to his client, for allowing a party to evade the consequences of the acts or omissions of his freely selected agent would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent."
S.E.C. v. McNulty, 137 F.3d 732, 739 (2d Cir. 1998), cert. denied, 525 U.S. 931 (1998). See also Link v. Wabash Railroad Co., 370 U.S. 626, 633-34 (1962);Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 396 (1993).*fn2
However, there are limits to this rule. "From the nature of the attorney-client relationship itself, an attorney derives authority to manage the conduct of litigation on behalf of a client, including the authority to make certain procedural or tactical decisions . . . . But that authority is hardly unbounded. Equally rooted in the law is the principle that, without a grant of authority from the client, an attorney cannot compromise or settle a claim." ...