United States District Court, D. New Jersey, Camden Vicinage
September 12, 2005.
McKOWAN LOWE & CO., LTD., Plaintiff,
JASMINE, LTD., et al., Defendants.
The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
This matter comes before the Court on appeal from a magistrate
judge's order denying movant, Cary L. Flitter and the Law Firm of
Lundy, Flitter, Beldecos & Berger, P.A. ("Flitter"), leave to
withdraw as counsel for defendant Edward Maskaly ("Defendant").
Flitter currently represents Defendant in a securities fraud
class action against Jasmine, Ltd. Defendant was Jasmine's
Managing Director Finance/Administration, CFO, and one of its
Directors. Over the course of the ongoing representation,
Defendant allegedly incurred $5,000 of unpaid legal bills and has
been unresponsive to many of his counsel's attempts to
communicate. Flitter filed an initial motion to withdraw as counsel for
Defendant on February 2, 2005, which was not opposed by either
Defendant or the opposing party to the litigation. Magistrate
Judge Ann Marie Donio denied Flitter's motion to withdraw without
prejudice. Flitter filed a motion for reconsideration, which was
Treating the motion for reconsideration as a renewed motion to
withdraw, Judge Donio found that Flitter failed to establish a
sufficient basis to permit withdrawal. Specifically, Judge Donio
held that the representation is not placing an unreasonable
financial burden on Flitter or his law firm and that, while
Flitter has clearly had difficulty communicating with his client,
there has not been a complete cessation of communication. Judge
Donio also noted that withdrawal would adversely affect relevant
equitable considerations. In particular, withdrawal would result
in prejudice to other litigants and to the administration of
justice since there is no indication that Defendant will be able
to adequately represent himself or obtain substitute counsel.
II. Jurisdiction and Standard of Review
Under 28 United States Code § 636(b)(1)(A), a district court
may not set aside a magistrate's determination of a pretrial
matter unless "it has been shown that the magistrate's order is
clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A). See also United Steelworkers of America v. New
Jersey Zinc, 828 F.2d 1001 (3d Cir. 1987). An order is clearly
erroneous only when the Court "is left with a definite and firm
conviction that a mistake has been made." South Seas Catamaran,
Inc. v. M/V Leeway, 120 F.R.D. 17, 21 (D.N.J. 1988), aff'd,
993 F.2d 878 (3d Cir. 1993) (quoting United States v. United States
Gypsum Co., 333 U.S. 364, 395 (1948)). The party filing the
notice of appeal bears the burden of demonstrating that the
magistrate judge's decision was clearly erroneous or contrary to
law. Exxon Corp. v. Halcon Shipping Co., Ltd., 156 F.R.D. 589,
591 (D.N.J. 1994).
Unless other counsel is substituted, counsel may withdraw only
with leave of court. L. Civ. R. 102.1.*fn1 Permission to
withdraw is entirely within the discretion of the court, and a
court may, therefore, refuse to allow withdrawal despite a
showing of good cause.*fn2 R. Prof'l Conduct 1.16(c);
Rusinow v. Kamara, 920 F. Supp. 69, 71 (D.N.J. 1996); United
States v. Cannistraro, 799 F. Supp. 410, 419 (D.N.J. 1992).
In exercising its discretion, the court should look to four
guiding factors: (1) the reasons withdrawal is sought; (2) the
prejudice withdrawal may cause to other litigants; (3) the harm
withdrawal might cause to the administration of justice; and (4)
the degree to which withdrawal will delay the resolution of a
case. See Comment, L. Civ. R. 18; Rusinow v. Kamara,
920 F. Supp. 69 (D.N.J., 1996); Haines v. Liggett Group, Inc.,
814 F.Supp. 414, 422-23 (D.N.J., 1993).
Judge Donio carefully evaluated each of these four criteria to
determine that the Flitter's reasons for withdrawal were
inadequate, particularly in light of the relevant equitable
considerations. Defendant is a high-level officer of a
corporation currently defending itself against significant
allegations of securities fraud. Since there are no indications
that Defendant will hire substitute counsel, and since Defendant
does not appear prepared to defend himself, Flitter's withdrawal
would inhibit the administration of justice and prejudice the
other litigants in this case.
The Court found that these considerations weighed strongly
against granting Flitter leave to withdraw. This determination
was well within the court's discretion and was neither clearly
erroneous nor contrary to law. Because Flitter has failed to
satisfy his burden of demonstrating that this decision was clearly erroneous, the magistrate's order is
The accompanying Order shall issue today.
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