United States District Court, N.D. New York
ROBERT W. OTTINGER, ESQ., THE OTTINGER FIRM, P.C., Attorneys for Plaintiff, New York, New York.
DAVID G. EBERT, ESQ., INGRAM YUZEK GAINEN CARROLL, & BERTOLOTTI, LLP, Attorneys for Defendant, New York, New York.
MEMORANDUM, DECISION & ORDER
CHRISTIAN F. HUMMEL, Magistrate Judge.
Plaintiff Soheila Hexemer ("Hexemer") brought an action against defendants, General Electric Company, GID Global, LLC and Jose Garcia, alleging violations of retaliation pursuant to 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e) et seq, and the New York State Human Rights Law. Am. Compl. (Dkt. No. 40). Currently pending before the Court is a motion to withdraw filed under seal by Hexemer's counsel. Dkt. No. 60. Hexemer has opposed the motion. Dkt. No. 61. Defendants have filed no opposition. For the reasons stated below, the motion to withdraw is denied.
Plaintiff filed the present action with the Northern District of New York on December 10, 2012 (Compl. (Dkt. No. 1)), and subsequently filed an amended complaint on March 31, 2014 (Am. Compl. (Dkt. No. 40)). Defendants filed an answer to the complaint on October 18, 2013 (Dkt. No. 20), and subsequently filed an amended answer on March 27, 2014 (Dkt. No. 38). Defendants filed a motion to dismiss on January 31, 2013 (Dkt. No. 6), which was opposed (Dkt. No. 12), and ultimately granted in part (Dkt. No. 16). A Uniform Pretrial Scheduling Order ("UPSO") was entered by the Court on January 16, 2014. Dkt. No. 26. Discovery was due by April 14, 2014 and motions were due by July 14, 2014. Id. Mandatory mediation occurred on May 27, 2014 and the case did not settle. Dkt. No. 46. Accordingly, the case continued progressing pursuant to the deadlines previously outlined in the Court's UPSO. Id.
On June 17, 2014, pursuant to Hexemer's request, the undersigned extended the deadlines for discovery and the filing of motions to July 14, 2014 and August 18, 2014 respectively. Dkt. Nos. 52-53. The discovery deadline expired. On August 15, 2014, pursuant to defendants' request, the motion deadline was again extended through September 5, 2014. Dkt. No. 58. On September 8, 2014, the undersigned ordered a telephone conference regarding the issue of Hexemer's representation. See Dkt. Activity Sheet entry dated 9/8/2014. On September 16, 2014, a telephone conference was held with all parties whereupon Hexemer's counsel sought withdrawal, and Hexemer objected to that request. See Dkt. Activity Sheet Text Minute Entry dated 9/16/2014. A motion briefing schedule was set. Dkt. No. 59. The deadline for dispositive motions in the case was adjourned without date, pending the outcome of the present motion. Id. The motion, response, and reply were all timely filed under seal with the undersigned. Dkt. Nos. 60-61.
Without revealing information protected by attorney-client privilege, the pertinent facts are as follows. "This is a retaliation case. The core allegation is that Ms. Hexemer complained about discrimination on October 29, 2012 and was fired on October 31. The close nexus between her complaint and the subsequent termination initially cause[d counsel] to believe that Ms. Hexemer had a strong case." Ottinger Decl. ¶ 4. Newly produced discovery, specifically an internal e-mail between defendants, given to Ms. Hexemer's counsel after the close of discovery would seem to indicate that Hexemer's termination had previously been decided upon due to a lack of funding for her position. Id. ¶¶ 11-14. The authenticity of the e-mail was confirmed by plaintiff's counsel. Id. ¶ 16.
Counsel contends that, based upon the newly-discovered evidence, there has been a conflict of interest created because they cannot in good faith move forward with litigation advancing what they would quantify as a meritless claim. Further, counsel alleges that another conflict of interest exists because they cannot come to agreement with Hexemer about litigation or settlement strategies.
Withdrawal of counsel in a civil case is governed by Local Rule 83.2(b) which provides:
An attorney who has appeared may withdraw only upon notice to the client and all parties to the case and an order of the Court, upon a finding of good cause, granting leave to withdraw... Unless the Court orders otherwise, withdrawal of counsel, with or without the consent of the client, shall not result in the extension of any of the deadlines contained in any case management orders... or the adjournment of a trial ready or trial date.
N.D.N.Y.L.R. 83.2(b). Hexemer opposes the motion.
In determining whether good cause has been shown for withdrawal, federal courts look to the various codes of professional responsibility. See Whiting v. Lacara, 187 F.3d 317, 321 (2d Cir. 1999) (referring to the Code of Professional Responsibility to illustrate both mandatory and permissive situations for withdrawal as counsel); Heck-Johnson v. First Unum Life Ins. Co., No. 01-CV-1739 (GLS/RFT), 2006 WL 1228841, at *4 (N.D.N.Y. May 4, 2006) (citing to the New York State Code of Professional Responsibility, which is based upon the Model Code). The Court must analyze "the reasons for withdrawal and the impact of the withdrawal on the timing of the proceeding." Karimian v. Time Equitites, Inc., No. 10-CV-3773 (AKH/JCF), 2011 WL 1900092, at *2 (S.D.N.Y. May 11, 2011). "The court must ...