MAGARGAL v. STATE OF NEW JERSEY et al - Document 35
ORDER granting 32 Andrew Smith's Motion to Withdraw as Attorney; that if Pltf does not retain counsel, she will be deemed as proceeding pro se; that if Pltf does retain new counsel, her new counsel shall make an appearance by 12/14/2011; that the parties shall submit a new proposed schedule by 12/20/2011. Signed by Magistrate Judge Tonianne J. Bongiovanni on 11/14/2011. (gxh)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROBIN BETH MAGARGAL,
Civil Action No. 07-3531 (JAP)
STATE OF NEW JERSEY, et al.,
This matter has been opened to the Court upon Motion [Docket Entry No. 32] by Andrew
Smith, Esq. (“Counsel”) of the law firm of Smithbridge, LLP, attorney for Plaintiff, seeking an
Order permitting him to withdraw as counsel for Plaintiff, Robin Magargal. Defendant has not
filed any objection to the motion. Plaintiff has submitted a letter in opposition to Counsel’s
Motion to Withdraw [Docket Entry No. 33]. The Court has read all submission in support of,
and in opposition to, Counsel’s motion and considers same pursuant to FED . R. CIV . P. 78.
I. Background and Procedural History
Plaintiff initially filed her Complaint, pro se, in July 2007 [Docket Entry No. 1]. In May
2006, Plaintiff retained Stuart J. Alterman, Esq. who filed an Amended Complaint and Jury
Demand. On November 25, 2008, this matter was stayed pending the outcome of arbitration
[Docket Entry No. 17]. Plaintiff expressed dissatisfaction with the services provided by Mr.
Alterman and other associates at his firm. She then retained Andrew Smith of Smithbridge, LLP,
who entered his appearance in this matter on April 4, 2011 [Docket Entry No. 22].
Soon after, on May 2, 2011, Plaintiff wrote a letter to the Court indicating that she was
dissatisfied with Counsel.
He responded to that letter on May 3, 2011 stating that there was
nothing he could do with her case until the arbitration finished and stating that he thought she
should find other representation [Docket Entry No. 23]. Counsel expressed to the Court that he
was having difficulty communicating with his client and that he did not think he would be able to
meet Plaintiff’s expectations regarding this matter [Docket Entry No. 23]. Indeed, the record
indicates that Counsel made efforts to contact Plaintiff in an effort to explain the stay in this
matter pending the completion of arbitration. See April 29, 2011 E-mail from Counsel to
Plaintiff [Docket Entry No. 23 at 3]. Despite this conflict, Counsel continued to represent
Per a letter dated June 30, 2011, Counsel filed his application to vacate the stay on these
proceedings due to the fact that a decision had been rendered in the arbitration on May 4, 2011.
Although this letter was dated June 30, 2011, it was filed via ECF and docketed on July 18, 2011
[Docket Entry No. 24]. A conference call was held on August 18, 2011 which resulted in a
Scheduling Order [Docket Entry No. 31]1.
On September 29, 2011, the Court received an e-mail from Plaintiff in which she again
expressed her dissatisfaction with Counsel’s representation and attentiveness to this matter. A
history of e-mail correspondence between Counsel and Plaintiff was included in that e-mail.
Counsel filed this Motion to Withdraw that same day. In his motion, Counsel cites to differing
opinions in strategy and his inability to meet Plaintiff’s expectations regarding this litigation.
Counsel also indicates that his office has exchanged over 400 e-mails with Plaintiff “regarding
The conference call was originally scheduled for August 4, 2011; however, Counsel was
unable to participate due to technical difficulties. See Docket Entry No. 26.
guidelines, procedural issues, time lines, Court dates, past issues in the case and future
scheduling events.” See Notice of Motion to Withdraw as Counsel at 4. In addition, Counsel
states that Plaintiff frequently contacted his office regarding the status of her case to the point
where her communications and actions “have become oppressive” on him and his staff. Id at 5.
Counsel certifies that he has suggested to Plaintiff that she retain new counsel; however, despite
her dissatisfaction with his representation, she refuses to do so.
Plaintiff argues that allowing the withdrawal will hinder her financially as well as “cause
further delay, rescheduling work between the parties and the Court, hardship on Plaintiff an other
possibly irreparable damage.” See Docket Entry No. 33 at *2. Additionally, Plaintiff believes
that the alleged delay tactics instituted by Counsel and Defendants have resulted in the “loss of
involved parties terminated and/or forced to ‘retire’.” Id. Plaintiff asserts that further delays as a
result of allowing the withdraw could lead to “loss of more witnesses and testimony needed at
The Court recognizes that “[u]nless other counsel is substituted, no attorney may
withdraw an appearance except by leave of Court” (L.CIV .R. 102.1). Courts have full discretion
over whether to permit an attorney’s withdrawal. Rusinow v. Kamara, 920 F. Supp. 69, 71
(D.N.J. 1996). New Jersey Rule of Professional Conduct 1.16(b), in pertinent part, provides that
“. . . a lawyer may withdraw from representing a client if (1) withdrawal can be accomplished
without material adverse effect on the interests of the client; . . . (5) the client fails substantially
to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given
reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; . . . or (7)
other good cause for withdrawal exists” (RPC 1.16 (2009). Before allowing withdrawal of
counsel the Court must look to “a) the reasons why withdrawal is sought, b) the prejudice
withdrawal may cause other litigants, c) the harm withdrawal might cause to the administration
of justice, and d) the degree to which withdrawal will delay the resolution of the case.” United
States ex rel. Cherry Hill Convalescent Ctr. v. Healthcare Rehab Sys., 994 F. Supp. 244, 252-53
In this case, Counsel seeks to withdraw due to differing opinions between him and
Plaintiff as to how this case should proceed and due to Counsel’s belief that he cannot meet
Plaintiff’s expectations of her case. Counsel also indicates that Plaintiff’s frequent
communications with the Court and with his firm have become “oppressive” to him and his staff.
See Notice of Motion to Withdraw as Counsel at 5.
Defendants have not indicated any objection to the instant motion. Therefore, the Court
finds that allowing withdrawal would not cause undue prejudice to Defendants. Further, the
Court notes that, despite the age of the docket, this case is still in its relative infancy. Thus,
allowing withdrawal will not cause harm to the administration of justice and will not
significantly delay the resolution of this matter.
The Court’s main concern in the present situation is the effect that Counsel’s withdrawal
will have on Plaintiff’s case. As outlined in Plaintiff’s Opposition to this motion, Plaintiff
believes she will be prejudiced by the withdraw. However, she also expresses extreme
dissatisfaction with Counsel; an opinion which she brought to the attention of the Court even
before the filing of his Motion to Withdraw. The Court finds that allowing a withdraw will not
have a material adverse effect on the interests of Plaintiff. As discussed above, this case is still in
its infancy. Plaintiff’s rights will be protected and she will be afforded ample time to conduct
Further, it is unclear what Plaintiff means when she argues that a delay as a result of this
motion will result in the “insurmountable loss of involved parties terminated and/or forced to
‘retire’ (2010) affecting the ability to resolve this matter.” [Docket Entry No. 33 at 2]. The
employment status of potential witnesses will not affect their availability to be deposed, if
appropriate. Thus Plaintiff’s case will not be adversely affected in this respect.
It is evident that Plaintiff is not satisfied with her current representation. She brought this
to the attention of the Court even though Counsel had explained to Plaintiff that nothing could be
done in this matter until the completion of the arbitration. Counsel has attempted to provide
Plaintiff with a realistic time line as to how this case will proceed; however, she is not satisfied.
In addition, Counsel has suggested to Plaintiff several times that she obtain new representation.
Plaintiff is understandably frustrated with the pace of this litigation and wishes to resolve this
matter as expeditiously as possible. The Court wishes to accommodate her needs and come to a
fair resolution. However, Plaintiff’s eagerness to litigate this matter has placed extraordinary
demands on Counsel’s time. Therefore, the appropriate resolution is to permit Counsel to
Plaintiff is free to retain new counsel. In order to give her the opportunity to do so,
discovery in this matter shall be stayed until further Order of the Court. If she chooses not to
retain new counsel, Plaintiff shall be deemed as proceeding pro se. Plaintiff is advised that there
is available a pro se handbook on the Court’s website which she may use for guidance. If
Plaintiff does retain new counsel, her new counsel shall make an appearance in this matter no
later than December 14, 2011. Regardless of whether Plaintiff proceeds pro se or becomes
represented, the parties shall confer and submit a new proposed schedule to the Court no later
than December 20, 2011.
For the reasons set forth above and for good cause shown,
IT IS on this 14th day of November, 2011
ORDERED that Andrew Smith’s Motion to Withdraw as Counsel is GRANTED; and it
ORDERED that if Plaintiff does not retain counsel, that she will be deemed as proceeding
pro se; and it is further
ORDERED that if Plaintiff does retain new counsel, her new counsel shall make an
appearance no later than December 14, 2011; and it is further
ORDERED that the parties shall submit a new proposed schedule to the Court no later
than December 20, 2011; and it is further
ORDERED that the Clerk of the Court terminate this Motion [Docket Entry No. 32]
s/ Tonianne J. Bongiovanni
HONORABLE TONIANNE J. BONGIOVANNI
UNITED STATES MAGISTRATE JUDGE