Filed: Apr. 16, 2003
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 16, 2003 Charles R. Fulbruge III Clerk 02-30995 Summary Calendar ROSHAN ASSOCIATES, INC., Plaintiff-Appellant, VERSUS MOTIVA ENTERPRISES; STAR ENTERPRISES, Defendants-Appellees. Appeal from the United States District Court For the Eastern District of Louisiana ( 01-CV-2649 ) Before JONES, DUHÉ and CLEMENT, Circuit Judges. PER CURIAM:1 This case requires us to determine whether the di
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 16, 2003 Charles R. Fulbruge III Clerk 02-30995 Summary Calendar ROSHAN ASSOCIATES, INC., Plaintiff-Appellant, VERSUS MOTIVA ENTERPRISES; STAR ENTERPRISES, Defendants-Appellees. Appeal from the United States District Court For the Eastern District of Louisiana ( 01-CV-2649 ) Before JONES, DUHÉ and CLEMENT, Circuit Judges. PER CURIAM:1 This case requires us to determine whether the dis..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 16, 2003
Charles R. Fulbruge III
Clerk
02-30995
Summary Calendar
ROSHAN ASSOCIATES, INC.,
Plaintiff-Appellant,
VERSUS
MOTIVA ENTERPRISES; STAR ENTERPRISES,
Defendants-Appellees.
Appeal from the United States District Court
For the Eastern District of Louisiana
( 01-CV-2649 )
Before JONES, DUHÉ and CLEMENT, Circuit Judges.
PER CURIAM:1
This case requires us to determine whether the district court
abused its discretion in granting a motion by counsel for a
corporate plaintiff to withdraw, and whether the district court
erred in granting Defendants’ motion for summary judgment after the
corporate plaintiff was unrepresented. Plaintiff is represented by
counsel in this appeal. We find no abuse of discretion in allowing
counsel to withdraw and no error in proceeding with the pending
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
motion. We affirm.
I. Motion to Withdraw
This case was set for trial and Defendants’ summary judgment
motion was calendared when counsel for Plaintiff-Appellant Roshan
Associates, Inc., moved to withdraw on July 29, 2002. The motion
by Defendants-Appellees Motiva Enterprises and Star Enterprises for
summary judgment had been set for hearing on August 7. A July 30
deadline for opposition briefs passed without any submission by
Plaintiff. On August 1 the district court held a status conference
with attorneys for Roshan and Defendants, as well as the president
of Roshan, Mr. Cheema, who is not an attorney. At that conference
the district court continued the summary judgment hearing to August
21, and extended the deadline for Roshan’s opposition to August 15.
Though no opposition had been filed yet on behalf of Roshan,
the district court granted Roshan’s counsel’s motion to withdraw on
August 9. On August 15, the district court again extended Roshan’s
deadline for filing an opposition, and continued the hearing to
August 28.2 Mr. Cheema filed an opposition memorandum, purportedly
on behalf of Roshan. On August 28, the district court entered
summary judgment for Defendants.
We review the grant of a motion to withdraw for abuse of
2
The court prefaced this order with the statement, “Attorney,
Darryl A. Derbigny, has informed the Court this date that he
intends to enroll as counsel for plaintiff and has requested an
extension of time on the deadline for submitting an opposition to
defendants’ motion for summary judgment.”
Derbigny never enrolled as counsel of record for Roshan.
2
discretion. Whiting v. Lacara, 187 F.3d 317, 320 (2d Cir. 1999);
Washington v. Sherwin Real Estate, Inc.,
694 F.2d 1081, 1087 (7th
Cir. 1982). An abuse of discretion is established if no reasonable
person could agree with the district court.
Washington, 694 F.2d
at 1087; see also Friends for Am. Free Enter. Assoc. v. Wal-Mart
Stores, Inc.,
284 F.3d 575, 578 (5th Cir. 2002).
Roshan argues that the motion to withdraw was deficient
because it failed to give a reason for withdrawal or because
counsel lacked good cause to withdraw. Although jurisprudence
requires that a court must assure itself that the withdrawal is
“for good cause,” Broughten v. Voss, 634 F.2d 880, 882-83 (5th Cir.
1981), neither Local Rule 83.2.113 nor the jurisprudence requires
that counsel set forth the reason in the motion.
The cause for counsel’s withdrawal is not apparent in the
record and is therefore not subject to review. The record does
reflect that the judge held a status conference for the express
purpose of discussing the motion. We infer from this circumstance
that the district judge considered the reason for the motion.
Broughten also requires that a court assure itself that a
motion to withdraw does not disrupt the prosecution of the lawsuit
before it. 634 F.2d at 882-83. The record reflects that the
3
There is no question but that counsel’s motion to withdraw
satisfied Local Rule 83.2.11, by (1) providing the present address
and phone number of the client, (2) declaring that the client has
been notified of all deadlines and pending court appearances, and
(3) certifying service upon the client and opposing counsel.
3
district court considered this factor, too, from the court’s
adjustment and readjustment of the deadlines and hearing date. The
court’s repeated rescheduling reflects consideration both of
Plaintiff’s need for additional time as well as the desirability of
avoiding undue delay such as by a continuance without date.
As for prejudice, we conclude that Roshan has demonstrated
none. Even while represented by counsel, Roshan allowed the
initial deadline for opposing the summary judgment motion to
elapse. The court’s impetus for multiple calendar adjustments was
to allow Roshan additional time.4
We afford the district court considerable deference in its
management of its busy docket. We conclude that no abuse of
discretion occurred because reasonable persons could differ as to
the propriety of the district court’s action. Washington, 694 F.2d
at 1087; see also
Friends, 284 F.3d at 578.
II. Proceeding with the Motion for Summary Judgment
Roshan next contends that the district court erred in granting
a summary dismissal while Roshan was unrepresented. The propriety
of granting summary judgment turns on notice to the nonmoving party
and an opportunity to respond under Federal Rule 56. Defendants
served counsel for the Plaintiff with the motion on July 22, 2002.
4
Roshan complains that the district court sanctioned Roshan by
considering the motion unopposed despite the opposition filed by
Mr. Cheema. Roshan could have suffered no prejudice thereby
because the court indeed considered the submission by the corporate
plaintiff’s president as an amicus curiae brief.
4
The court originally noticed the hearing for August 7, 2002,
providing ample notice under Rule 56(c) (requiring ten days’
notice).5 Roshan’s counsel notified the client of all deadlines in
conjunction with his motion to withdraw. After granting the motion
to withdraw on August 9 and after multiple continuances, the court
eventually ruled on the summary judgment motion on August 28.
We find no error in the court’s proceeding with resolution of
the pending summary judgment motion where the first deadline for
opposition passed while Roshan was still represented, the court
provided multiple extensions of time for Plaintiff to submit an
opposition, and the court ruled after full consideration of the
evidence and the submission by Roshan’s president.
III. Merits of the Summary Judgment
Because Roshan has not identified any disputed material fact
or otherwise specified any error for our review concerning the
merits of the summary judgment, Roshan has abandoned this issue on
appeal. Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).
IV. Conclusion
We will not disturb the district court’s order allowing
counsel to withdraw. The summary judgment was properly granted
after repeated notices to Roshan and numerous extensions of time
5
Roshan also complains that it never received notice that it
would be sanctioned by dismissal on the merits for failure to
retain counsel. The record does not reflect such a sanction;
rather, the court dismissed Roshan’s claims on the merits based on
defendants’ summary judgment motion.
5
for an opportunity to be heard.
AFFIRMED.
6
