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Infinity Headwear & Apparel v. Jay Franco & Sons

United States District Court, S.D. New York

January 24, 2017

INFINITY HEADWEAR & APPAREL, Plaintiff,
v.
JAY FRANCO & SONS, et al., Defendants.

          OPINION AND ORDER

          RONALD L. ELLIS, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On December 22, 2014, Plaintiff Infinity Headwear & Apparel ("Infinity") filed a Complaint against Defendants Jay Franco & Sons and Jay At Play (collectively "Jay Franco"), alleging patent infringement. (Doc. Nos. 2.) This case was transferred from the United States District Court for the District of Utah to the Southern District of New York on February 20, 2015, and referred to the undersigned for general pretrial on February 27, 2015. (Doc. Nos. 21, 22.)

         On December 15, 2016, Jay Franco filed a motion for substitution of counsel and to stay proceedings for sixty days. (Doc. Nos. 230, 231.) Infinity filed its opposition to Jay Franco's motions on December 22, 2016. (Doc. No. 233.) Jay Franco did not file a reply. For the following reasons, Jay Franco's motion for substitution of counsel is GRANTED, and its motion to stay proceedings is DENIED.

         II. BACKGROUND

         For approximately two years, the Parties have engaged in fact discovery, which was set to close on November 25, 2016, with the exception of two depositions. (Tr. of Nov. 14, 2016, Status Conf., Doc. No. 211 at 48.) Additionally, the Court imposed sanctions against Defendants and their counsel of record, Ezra Sutton, for failing to comply with Court orders to supplement discovery responses. (Doc. No. 167.) Sanctions were granted in the amount of $13, 989.95. (Doc. No. 213.) On January 6, 2017, Infinity filed an omnibus motion for sanctions for additional discovery failures. (Doc. Nos. 239, 241, 242)

         Jay Franco filed a three-page motion for substitution of counsel and a stay of proceedings on December 15, 2016. (Doc. Nos. 230, 231.) The motion indicates that Jay Franco retained counsel at Kelley Drye & Warren LLP ("Kelley Drye") on December 9, 2016, because "Jay Franco no longer wishes to be represented by Ezra Sutton, Esq. ["Sutton"]" for "a number of reasons." (Doc. No. 231.) Kelley Drye also requests a sixty-day stay of proceedings so that the attorneys litigating the case can "familiarize themselves with this matter." Id. Kelley Drye also argues that the impact on the proceedings will be minimal and Jay Franco's discharge of counsel is sufficient grounds to permit substitution. Id.

         On December 22, 2016, Infinity filed its opposition to Jay Franco's motions, arguing that the motions should be denied because of pending sanctions requests, and because Jay Franco failed to assert a case of hardship to justify a stay. (Doc. No. 233.) In addition to arguing that Jay Franco's motions are procedurally and substantively insufficient, Infinity informed the Court of its offer to stipulate to a three-week extension of outstanding case deadlines, including the date to oppose Infinity's False Marking motion for partial summary judgment ("MPSJ").

         III. DISCUSSION

         A. Substitution of Counsel

         Local Civil Rule 1.4 governs the withdrawal or substitution of counsel. The Rule requires an order of the Court to relieve or displace an attorney of record:

Such an order may be granted only upon a showing by affidavit or otherwise of satisfactory reasons for withdrawal or displacement and the posture of the case, including its position, if any, on the calendar, and whether or not the attorney is asserting a retaining or charging lien.

S.D.N.Y.Local Civ. R. 1.4 at 10.

         Although the court has "considerable discretion in deciding a motion for withdrawal of counsel, " SEC v. Pentagon Capital Mgt. PLC, 08-cv-3324 (RWS), 2013 WL 5815374, at *4 (S.D.N.Y. Oct. 29, 2013), when considering whether to grant a motion to substitute counsel, the court analyzes the impact of withdrawal on the proceedings and the reasons for withdrawal. Battino v. Cornelia Fifth Avenue, LLC, 09-cv-4113 (LGS), 2013 WL 4779635, at *1 (S.D.N.Y. June 26, 2013) (quoting Blu ...


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