Filed: Jul. 03, 2019
Latest Update: Jul. 03, 2019
Summary: MEMORANDUM OPINION & ORDER NOEL L. HILLMAN , District Judge . WHEREAS, Plaintiff, Gino D'Ottavio, filed a putative class action alleging that Defendant, Slack Technologies, transmitted dozens of unsolicited commercial text messages to Plaintiff on Plaintiff's cellular telephone, in violation of the Telephone Consumer Protection Act("TCPA"), 47 U.S.C. 227 et seq., thereby invading Plaintiff's privacy; and WHEREAS, Slack filed an answer to Plaintiff's complaint denying his claims and lodgi
Summary: MEMORANDUM OPINION & ORDER NOEL L. HILLMAN , District Judge . WHEREAS, Plaintiff, Gino D'Ottavio, filed a putative class action alleging that Defendant, Slack Technologies, transmitted dozens of unsolicited commercial text messages to Plaintiff on Plaintiff's cellular telephone, in violation of the Telephone Consumer Protection Act("TCPA"), 47 U.S.C. 227 et seq., thereby invading Plaintiff's privacy; and WHEREAS, Slack filed an answer to Plaintiff's complaint denying his claims and lodgin..
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MEMORANDUM OPINION & ORDER
NOEL L. HILLMAN, District Judge.
WHEREAS, Plaintiff, Gino D'Ottavio, filed a putative class action alleging that Defendant, Slack Technologies, transmitted dozens of unsolicited commercial text messages to Plaintiff on Plaintiff's cellular telephone, in violation of the Telephone Consumer Protection Act("TCPA"), 47 U.S.C. § 227 et seq., thereby invading Plaintiff's privacy; and
WHEREAS, Slack filed an answer to Plaintiff's complaint denying his claims and lodging a counterclaim, claiming that Plaintiff abused a feature on Slack's website to deliberately send himself the texts at issue; and
WHEREAS, on April 15, 2019, the Court granted Plaintiff's motion to dismiss his claims against Slack, but denied without prejudice Slack's motion for sanctions, as well as Plaintiff's counsel's motion to withdraw as counsel (Docket No. 36, 37); and
WHEREAS, Slack's counterclaim remains pending for separate adjudication;1 and
WHEREAS, the Court directed Plaintiff to file a letter on the docket, either through his current counsel or independently, indicating whether: (1) he consents to the withdrawal of his lawyers; (2) he understands that he is still subject to Slack's counterclaims and request for sanctions against him; and (3) he wishes to represent himself pro se or obtain another attorney to represent him (Docket No. 36 at 8); and
WHEREAS, the Court directed counsel for Plaintiff to provide a copy of the Opinion and accompanying Order to Plaintiff and file a certification of service to document that they did so; and
WHEREAS, Plaintiff's counsel complied with the Court's Order (Docket No. 40, 42), and counsel has refiled their motion to withdraw (Docket No. 43); and
WHEREAS, Plaintiff's counsel relates that after over 20 attempts to communicate with Plaintiff over the course of several months to no avail, counsel finally communicated with Plaintiff, and Plaintiff related:
1) "I do not consent to your motion to withdraw as counsel";
2) "I understand the nature of the counter suit";
3) "If Ari Marcus if permitted to withdraw I presently do not know how I will be proceeding."
(Docket No. 42); and
WHEREAS, Slack filed a letter stating that it takes no position on Plaintiff's counsel's motion to withdraw (Docket No. 44); and
WHEREAS, the standards for assessing whether an attorney may be relieved of his representation of his client in a pending case are set forth in Local Civil Rule 102.1 ("Unless other counsel is substituted, no attorney may withdraw an appearance except by leave of Court.") and Rule of Professional Conduct 1.16, which requires the Court to consider four criteria: (1) the reason withdrawal is sought; (2) the prejudice withdrawal may cause to other litigants; (3) the harm withdrawal may cause to the administration of justice; and (4) the degree to which withdrawal may delay the resolution of the case, U.S. ex rel. Cherry Hill Convalescent, Ctr., Inc. v. Healthcare Rehab Sys., Inc., 994 F.Supp. 244, 252-53 (D.N.J. 1997); and
WHEREAS, the Court finds that good cause exists to relieve counsel of their obligation to represent Plaintiff: (1) even though Plaintiff has stated to his lawyers that he does not consent to their withdrawal, Plaintiff has failed to have any meaningful communication with his counsel since September 2018, and has not contacted the Court with regard to any of his concerns, even when he was encouraged to do so by the Court's prior Orders; (2) Plaintiff understands that Slack's counterclaims remain pending against him, and that Slack's motion for sanctions against him is not mooted by the dismissal of his complaint against Slack; and (3) Plaintiff has consented to the dismissal of his claims against Slack, and Slack's counterclaims against Plaintiff remain in their infancy; and
WHEREAS, Plaintiff's refusal to consent to his counsel's withdrawal but otherwise fail to communicate with counsel or the Court presents an untenable position for the parties and the Court and frustrates, rather than promotes, the orderly adjudication of this matter;
THEREFORE,
IT IS on this 3rd day of July, 2019
ORDERED that Plaintiff's counsel's MOTION to Withdraw [43] be, and the same hereby is, GRANTED; and it is further
ORDERED that within 20 days of the date of this Order, Plaintiff shall either (1) enter his appearance pro se;2 or (2) obtain new counsel.
