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Farmer v. Hyde Your Eyes Optical, Inc.

United States District Court, S.D. New York

November 13, 2014

HYDE YOUR EYES OPTICAL, INC., et al., Defendants

Richard Farmer, Plaintiff, Pro se, Flushing, N.Y. USA.

For Hyde Your Eyes Optical, Inc., doing business as Pildes Optical, Pildes of 76th Street Inc., doing business as Pildes Optical, Jamar Optical Inc., doing business as Pildes Optical, Dr. Daniel Pildes, O.D., Jay Pagirsky, Dr. David Hyde, O.D., Defendants: Paul Patrick Rooney, Ellenoff Grossman & Schole, LLP, New York, N.Y. USA.

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JAMES L. COTT, United States Magistrate Judge.

Before the Court in this wage and hour action are the motions of Jeffrey J. Estrella, Esq. and Peter M. Zirbes, Esq. to withdraw as counsel for plaintiff Richard Farmer. For the reasons discussed below, both motions are granted.


Plaintiff, represented by counsel, filed this action on September 19, 2013, alleging failure to pay overtime compensation for hours worked in excess of 40 hours per week pursuant to the Fair Labor Standards Act, 29 U.S.C. § § 201 et seq., and the New York Labor Law. Complaint (Dkt. No. 1 ). Plaintiff subsequently amended his complaint to include a wrongful discharge claim after his employment was terminated subsequent to the filing of this action. Amended Complaint (Dkt. No. 3). Following an unsuccessful mediation session on March 27, 2014, plaintiff's first counsel moved to withdraw as plaintiff's

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attorney on March 31, 2014 (Dkt. No. 29), which was granted by Judge Daniels on April 8 (Dkt. No. 31 ).[1] Thereafter, plaintiff proceeded prose until Jeffrey Estrella, Esq. filed a notice of appearance on July 8 on behalf of the law office of Peter M. Zirbes, Esq., P.C., at which he was an associate attorney. (Dkt. No. 63).[2] Since that date, Mr. Zirbes has represented plaintiff in all submissions to the Court and at two discovery hearings.

Discovery in the case has been protracted and contentious. The Court has adjudicated a number of disputes and extended the discovery deadline three times. (Dkt. Nos. 59, 64, 68). Discovery was due to close on November 14; [3] however, as of the most recent hearing held on October 17, defendants stated that they had not yet taken plaintiff's deposition because he had yet to produce several documents and information about which defendants seek to question him. Defendants first alerted the Court to plaintiff's failure to fulfill his discovery obligations by letter dated July 7, when plaintiff was proceeding pro se. (Dkt. No. 61 ). Although plaintiff subsequently produced some of the information, to date the majority of defendants' requests remain unfulfilled, despite an apparent understanding reached between the parties at the end of July, and despite two orders compelling plaintiff to produce the requested documents or face sanctions for noncompliance--each order following a hearing during which plaintiff told the Court he would produce the information. (See Dkt. Nos. 65 (Defs.'s August 26 Letter-Motion), 73 (September 19 Order), 80 (October 17 Order)). Defendants' latest motion to compel, which also seeks various sanctions for plaintiff's violation of the Court's orders, is pending. (Dkt. No. 81).

Mr. Estrella moved to withdraw as plaintiff's counsel on October 15. Motion to Withdraw as Plaintiff's Counsel dated October 15, 2014 (" Estrella Motion" ) (Dkt. No. 76). In his motion, Mr. Estrella explains that, as of September 26, he is no longer affiliated with the law office of Peter M. Zirbes, Esq. P.C. Estrella Motion ¶ ¶ 1, 2. He maintains that he has had no contact with plaintiff since September 26 and even prior thereto. Id.¶ 3. Moreover, Mr. Estrella asserts that there has been " complete dissonance" and " a breakdown in communication" between plaintiff and Mr. Estrella since before September 26 " as well as difficulties with respect to the terms on which his prior firm was retained, which render it impossible for [Mr. Estrella] to continue to provide effective representation for [p]laintiff." Id. ¶ ¶ 4, 6.

Mr. Zirbes moved to withdraw as plaintiff's counsel at the October 17 hearing during an ex parte discussion the Court held with Mr. Zirbes and plaintiff.[4] In accordance with the Court's directive, Mr. Zirbes filed a written motion under seal on October 31, summarizing the purported deterioration of the attorney-client relationship to which he attested at the conference. Zirbes Declaration in Support of Motion to Withdraw as Counsel (" Zirbes Declaration" ) (Dkt. No. 84). Like Mr. Estrella, Mr. Zirbes asserts that there are

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irreconcilable differences between himself and plaintiff that have led to a complete breakdown in the attorney-client relationship. Mr. Zirbes claims that plaintiff has been uncooperative in providing him with the necessary information to comply with plaintiff's discovery obligations, contending that plaintiff often does not respond to his emails or calls, ...

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