United States District Court, S.D. New York
OPINION AND ORDER
L. ELLIS, UNITED STATES MAGISTRATE JUDGE
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.)
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.
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,
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.
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").
Substitution of Counsel
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.
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 ...