Serino v. Florisi et al, No. 2:2010cv00810 - Document 5 (D. Nev. 2010)
Court Description: ORDER Granting 4 Motion to Withdraw as Attorney. Laurel E. Davis withdrawn from the case as to Mr. Serino. Mr. Serino is provided with an additional 30 days to prepare and file his opening brief as well as his reply brief. Signed by Magistrate Judge Lawrence R. Leavitt on 7/12/10. (Copies have been distributed pursuant to the NEF - EDS)
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Serino v. Florisi et al 1 2 3 4 5 Doc. 5 Laurel E. Davis (NV Bar No. 3005) FENNEMORE CRAIG, P.C. 300 South Fourth Street, Suite 1400 Las Vegas, Nevada 89101 Telephone: (702) 692-8000 Fax: (702) 692-8064 Email: ldavis@fclaw.com Pro Bono Counsel for Nicholas Serino, Legal Aid Center of Southern Nevada 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF NEVADA 10 In re: Chapter 7 11 ROBERT J. FLORISI, and ANGELE FLORISI, Case No. BK-S-05-18091-BAM Adversary No. 05-1251-BAM Adversary No. 06-1076-BAM 12 Debtor(s). 13 14 APPEAL NUMBER 10-15 NICHOLAS SERINO, 15 Appellant, 16 vs. 17 ROBERT J. FLORISI and ANGELE FLORISI, 18 District Court Case Number: 2:10-CV-0080-JCM-LRL MOTION TO WITHDRAW AS COUNSEL OF RECORD AND TO EXPAND BRIEFING SCHEDULE Appellees. 19 20 Laurel E. Davis of Fennemore Craig, P.C., moves to withdraw as counsel for Nicholas 21 Serino, and to expand the briefing schedule to accommodate Mr. Serino. This Motion is made 22 and based upon the points and authorities set forth below, the accompanying Declaration of 23 Laurel E. Davis (“Davis Declaration”), the papers and pleadings on file herein and any evidence 24 adduced at the time of any hearing of this matter. 25 26 FENNEMORE CRAIG, P.C. 95379.1 LAS VEG AS Dockets.Justia.com 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. 3 STATEMENT OF FACTS 4 1. An Application for Order to Show Cause Why Nicholas Serino, aka Richard 5 Serino, Should not be Held in Contempt of this Court’s October 5, 2006 and January 16, 2008 6 Orders Pursuant to Fed.R.Bankr. 9020, was filed December 19, 2008 (“OSC Application”) in the 7 Bankruptcy Court as Docket No. 127. Davis Declaration, ¶ 1. 8 9 At that time, Nicholas Serino was not represented by counsel. Davis Declaration, 3. In January of 2009, Mr. Serino sought representation through the Legal Aid Center ¶ 2. 10 11 2. of Southern Nevada. Davis Declaration, ¶ 3. 12 4. On January 27, 2010, Laurel E. Davis prepared and filed a Notice of Appearance 13 as Pro Bono counsel through the Legal Aid Center of Southern Nevada, with respect to the OSC 14 Application. Davis Declaration, ¶ 4. 15 5. Evidentiary hearings on the OSC Application were held April 27, 2009 (DE 172, 16 Serino Testimony; DE 185, Rest); May 22, 2009 (DE 176, Vol. I; DE 177, Vol II); June 1, 2009 17 (DE 182, Vol. I; DE 183, Vol. II); and June 22, 2009 (DE 184). Davis Declaration, ¶ 5. 18 19 6. After the evidentiary hearings, the Court took the OSC Application under submission. Davis Declaration, ¶ 6. 20 7. On April 13, 2010, the Court rendered its Opinion regarding the OSC Hearings, 21 (DE 196), which required a further declaration from counsel for Florisi to fix the award of 22 attorneys’ fees and costs. Davis Declaration, ¶ 7. 23 8. On May 13, 2010, the Court entered its Order Granting Compensatory Damages, 24 Attorneys’ Fees and Costs (DE 199), which resolved the OSC Application. Davis Declaration, ¶ 25 8. 26 FENNEMORE CRAIG, P.C. 9. Mr. Serino contacted Fennemore Craig, expressing a strong desire to appeal the 95379.1 LAS VEG AS -2- 1 Court’s Order. Davis Declaration, ¶ 9. 2 10. Because of the very short time frame involved in perfecting an appeal in the 3 Bankruptcy Court, and in order to protect Mr. Serino’s rights, Ms. Davis filed the Notice of 4 Appeal, Statement of Issues on Appeal and Designation of Record on Appeal. Davis Declaration, 5 ¶ 10. 6 11. For several months, Ms. Davis has assisted Mr. Serino with his efforts to locate 7 new pro bono counsel. At the present time, new counsel has not been located and no one has 8 contacted Ms. Davis advising her that they will take on the case. Davis Declaration, ¶ 11. 9 12. Because Mr. Serino has limited funds, is 97 years old, disabled and wheelchair 10 bound, he did not want the appeal heard by the out of state Bankruptcy Appellate Panel. He 11 therefore objected to the automatic reference of the appeal to the Bankruptcy Appellate Panel to 12 ensure that the matter would be heard in Las Vegas. Davis Declaration, ¶ 12. 13 13. Mr. Serino has been provided with copies of the Notice of Appeal, Designation of 14 Record on Appeal, Statement of Issues on Appeal, all pleadings filed to date in the appeal, all 15 relevant minute entries from the Bankruptcy Court, the file materials and the record on appeal. 16 At the present time, there are no pending deadlines for briefs, pleadings or other responses by him 17 in this matter. Davis Declaration, ¶ 13. 18 14. Because of Mr. Serino’s advanced age, health and other concerns, additional time 19 is requested for briefs required from Mr. Serino, because it not likely that he will succeed in 20 locating other pro bono counsel for the appeal. Davis Declaration, ¶ 14. 21 15. Ms. Davis and Fennemore Craig are active participants in and supporters of the 22 Legal Aid Center of Southern Nevada. The scope of the OSC Application expanded significantly 23 when the Bankruptcy Court scheduled it for four days of evidentiary hearings, and it resulted in a 24 very large pro bono commitment on behalf of Mr. Serino. Through the conclusion of the post- 25 hearing briefing, Fennemore Craig provided over 400 hours of pro bono time to Mr. Serino, 250 26 hours of which consisted of time billed by Ms. Davis. Continued representation of Mr. Serino in FENNEMORE CRAIG, P.C. 95379.1 LAS VEG AS -3- 1 this appeal is beyond the scope of the initial engagement as pro bono counsel for Mr. Serino, and 2 it would result in a hardship to Fennemore Craig. Davis Declaration, ¶ 15. 3 4 16. On June 8, 2010, Appellees filed a Motion to Disqualify the Honorable James C. Mahan (Dkt. 3), and that Motion remains pending. 5 17. On June 14, 2010, the Bankruptcy Court transmitted the Appeal Documents to the 6 District Court (Dkt. 223). A copy of the Certificate is attached as Exhibit 1. A briefing schedule 7 has not been issued by this Court. 8 9 10 18. Counsel of Record for Nicholas Serino, by Order entered June 29, 2010 (Dkt. 226). A copy of the Bankruptcy Court’s Order is attached as Exhibit 2. 11 12 On June 15, 2010, the Bankruptcy Court granted the Motion to Withdraw as 19. Mr. Serino does not object to the withdrawal of Ms. Davis and Fennemore Craig at this time. Davis Declaration, ¶ 16. 13 20. 14 Declaration, ¶ 17. Mr. Serino’s address is: 3941 Odin Circle, Las Vegas, NV 15 III. 16 DECLARATION OF LAUREL E. DAVIS 17 89103. Davis I, Laurel E. Davis, under penalty of perjury, declare as follows: 1. 18 I am Pro Bono counsel for Nicholas Serino with respect to the Application for 19 Order to Show Cause Why Nicholas Serino, aka Richard Serino, Should not be Held in Contempt 20 of this Court’s October 5, 2006 and January 16, 2008 Orders Pursuant to Fed.R.Bankr. 9020, that 21 was filed with the Bankruptcy Court on December 19, 2008 as Docket No. 127 (“OSC 22 Application”). I am over the age of 18, and I am mentally competent. This declaration is made 23 and based upon my personal knowledge, and if called upon to testify, I could and would do so. I 24 make this declaration in support of my Motion to Withdraw as Counsel of Record for Nicholas 25 Serino and to Expand Briefing Schedule (“Motion”). 26 FENNEMORE CRAIG, P.C. 2. At the time the OSC Application was filed, Mr. Serino was not represented by 95379.1 LAS VEG AS -4- 1 counsel. 2 3 3. of Southern Nevada. 4 5 In January of 2009, Mr. Serino sought representation through the Legal Aid Center 4. On January 27, 2010, I prepared and filed a Notice of Appearance as Pro Bono counsel through the Legal Aid Center of Southern Nevada, with respect to the OSC Application. 6 5. Evidentiary hearings on the OSC Application were held April 27, 2009 (DE 172, 7 Serino Testimony; DE 185, Rest); May 22, 2009 (DE 176, Vol. I; DE 177, Vol II); June 1, 2009 8 (DE 182, Vol. I; DE 183, Vol. II); and June 22, 2009 (DE 184). 9 10 6. After the evidentiary hearings, the Court took the OSC Application under submission. 11 7. On April 13, 2010, the Court rendered its Opinion regarding the OSC Hearings, 12 DE 196, which required a further declaration from counsel for Florisi to fix the award of 13 attorneys’ fees and costs. 14 15 8. On May 13, 2010, the Court entered its Order Granting Compensatory Damages, Attorneys’ Fees and Costs, DE 199, which resolved the OSC Application. 16 9. Since April 23, 2010, Mr. Serino has made extensive efforts to communicate to me 17 his desire to appeal the Court’s Order and Judgment, including telephone calls, correspondence 18 and visits to my office. 19 10. Because of the very short time frame involved in perfecting an appeal in the 20 Bankruptcy Court, and in order to protect Mr. Serino’s rights, Ms. Davis filed the Notice of 21 Appeal, Statement of Issues on Appeal and Designation of Record on Appeal. 22 11. For several months, I have assisted Mr. Serino with his efforts to locate new pro 23 bono counsel. At the present time, new counsel has not been located and no one has contacted 24 me to advise that they will take on the case. 25 26 FENNEMORE CRAIG, P.C. 12. Because Mr. Serino has limited funds, is 97 years old, disabled and wheelchair bound, he did not want the appeal heard by the out of state Bankruptcy Appellate Panel. He 95379.1 LAS VEG AS -5- 1 therefore objected to the automatic reference of the appeal to the Bankruptcy Appellate Panel to 2 ensure that the matter would be heard in Las Vegas. 3 13. Mr. Serino has been provided with copies of the Notice of Appeal, Designation of 4 Record on Appeal, Statement of Issues on Appeal, all pleadings filed to date in the appeal, all 5 relevant minute entries from the Bankruptcy Court, the file materials and the record on appeal. 6 At the present time, there are no pending deadlines for briefs, pleadings or other responses by him 7 in this matter. 8 9 10 14. Because of Mr. Serino’s advanced age, health and other concerns, additional time is requested for briefs required from Mr. Serino, because it not likely that he will succeed in locating other pro bono counsel for the appeal. 11 15. Fennemore Craig and I are active participants in and supporters of the Legal Aid 12 Center of Southern Nevada. 13 Bankruptcy Court scheduled it for four days of evidentiary hearings, and it resulted in a very large 14 pro bono commitment on behalf of Mr. Serino. Through the conclusion of the post-hearing 15 briefing, Fennemore Craig provided over 400 hours of pro bono time to Mr. Serino, 250 hours of 16 which consist of time billed by me. Continued representation of Mr. Serino in this appeal is 17 beyond the scope of the initial engagement as pro bono counsel for Mr. Serino, and it would 18 result in a hardship to Fennemore Craig. 19 20 16. Mr. Serino does not object to the withdrawal of Ms. Davis and Fennemore Craig at this time. 21 17. 22 /// 23 /// 24 /// 25 /// 26 /// FENNEMORE CRAIG, P.C. The scope of this matter expanded significantly when the Mr. Serino’s address is: 3941 Odin Circle, Las Vegas, NV 89103. 95379.1 LAS VEG AS -6- 1 2 I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. 3 Dated: July 8, 2010. 4 /s/ Laurel E. Davis LAUREL E. DAVIS 5 6 IV. 7 LEGAL ARGUMENT 8 Local Rule 10-6 provides that “No attorney may withdraw after appearing in a case except 9 10 11 12 13 14 by leave of court, after notice served on the affected client and opposing counsel.” Additionally, LR IA 10-7(a) states, in pertinent part, “[a]n attorney admitted to practice pursuant to any of these rules shall adhere to the standards of conduct prescribed by the Model Rules of Professional Conduct as adopted and amended from time to time by the Supreme Court of Nevada, except as such may be modified by this Court.” Nevada Rules of Professional Conduct Rule 1.16 states, in pertinent part, as follows: 15 (b) Except as stated in paragraph (c), a lawyer may withdraw from the representation of a client if: … 16 17 (1) Withdrawal can be accomplished without material adverse effect on the interests of the client; 18 19 (7) Other good cause for withdrawal exists. 20 (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. 21 22 23 (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to 24 25 26 FENNEMORE CRAIG, P.C. 95379.1 LAS VEG AS -7- 1 which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. 2 3 4 Nevada Rules of Professional Conduct Rule 1.16. As demonstrated by the accompanying Davis Declaration, Fennemore Craig has complied 5 6 7 8 9 with the relevant local and ethical rules. This appeal was perfected. Efforts were made to locate new counsel for Mr. Serino through other pro bono organizations. Furthermore, Mr. Serino does not object to the withdrawal of Ms. Davis as his counsel. The Motion should therefore be granted. V. 10 CONCLUSION 11 For all of the reasons set forth above, an Order should be entered which: (1) approves 12 13 14 15 withdrawal of Ms. Davis as counsel for Mr. Serino; (2) provides Mr. Serino with an additional 30 days to prepare and file his opening brief as well as his reply brief; and (3) for any further relief that the court deems appropriate under the circumstances. DATED this 8th day of July, 2010. 16 FENNEMORE CRAIG, P.C. 17 /s/ Laurel E. Davis 18 By 19 LAUREL E. DAVIS 20 Pro Bono Counsel for Nicholas Serino, Legal Aid Center of Southern Nevada 21 22 23 24 25 7-12-10 26 FENNEMORE CRAIG, P.C. 95379.1 LAS VEG AS -8- 1 CERTIFICATE OF SERVICE 2 1. On July 8, 2010 I served the following document(s): 3 4 MOTION TO WITHDRAW AS COUNSEL OF RECORD AND TO EXPAND BRIEFING SCHEDULE 5 6 7 2. I served the above-named document(s) by the following means to the persons as listed below: 8 [x] 9 a. ECF System (attach the "Notice of Electronic Filing" or list all 10 persons and addresses): 11 CHRISTINA ANN-MARIE DIEDOARDO: Christina@diedoardolaw.com 12 [x] 13 14 b. United States mail, postage fully prepaid (list persons and addresses): 15 Nicholas Serino, 3941 Odin Circle, Las Vegas, NV 89103 16 17 I declare under penalty of perjury that the foregoing is true and correct. 18 DATED this 8th day of July, 2010. 19 /s/ Mia Hurtado An Employee of Fennemore Craig, P.C. 20 21 22 23 24 25 26 FENNEMORE CRAIG, P.C. 95379.1 LAS VEG AS -9-
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