United States District Court, E.D. Kentucky, Lexington
MEMORANDUM OPINION AND ORDER
M. Hood, Senior U.S. District Judge
matter is before the Court upon Midland Funding, LLC, and
Midland Credit Management, Inc.'s (collectively,
“Midland”) motion for summary judgment [DE 17]
and Plaintiff Paula Williams' motions to withdraw counsel
and dismiss the matter without prejudice. [DE 23]. The Court
having reviewed the motions, the time for Williams to file a
response to Midland's motion for summary judgment having
lapsed, and the Court being otherwise sufficiently advised,
this matter is ripe for review.
FACTS AND PROCEDURE
Paula Williams filed a complaint in this Court on September
13, 2018, alleging violations of the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692, et seq. [DE
1]. Midland answered [DE 5] on October 8, 2018, and the
matter proceeded through discovery. On July 29, 2019, Midland
filed a motion for summary judgment on all of Williams'
claims [DE 17]. Pursuant to LR 7.1, Williams had 21 days to
respond. A day after the response deadline passed,
Williams' counsel moved unopposed for an extension of
time to respond [DE 21]. This Court granted Williams'
motion for an extension and ordered that she respond to
Midland's motion for summary judgment by August 28, 2019.
[DE 22 at 2, PageID #531].
of responding to Midland's motion, on August 28, 2019,
counsel for Williams filed a motion to dismiss and withdraw
counsel. [DE 23]. Counsel claim they have not been able to
reach Williams “despite their diligent and best efforts
over the past month.” [DE 23 at 1, PageID #532]. For
the first time during this litigation, counsel state that
Williams' phone must be disconnected, that she has not
answered text messages, that emails were returned as
undeliverable, and mail was forwarded to an unknown address
without any response. [Id.]. The attached letter
from counsel to Williams, however, was delivered to a
forwarded address just five days before they filed the motion
at issue. [DE 23-1 at 2-4, PageID #538]. At no point does the
letter mention the potential dismissal of her case or her
attorneys' desire to withdraw. [Id.].
Williams' Motion to Dismiss
motion for summary judgment has been filed, this Court may
not grant a voluntary motion to dismiss unless the plaintiff
requests it and the Court finds the terms of dismissal to be
proper. Fed.R.Civ.P. 41(a)(2). Whether dismissal should be
granted is within the sound discretion of the district court.
Banque de Depots v. Nat'l Bank of Detroit, 491
F.2d 753, 757 (6th Cir. 1974). If a defendant will suffer
plain legal prejudice as a result of the dismissal, the
district court should deny the motion to dismiss. Grover
by Grover v. Eli Lilly and Co., 33 F.3d 716, 718 (6th
Cir. 1994). To determine if legal prejudice would result, the
Court should consider the defendant's efforts and
expenses in preparation for trial, excessive delay and lack
of diligence in the plaintiff's prosecution of the case,
an insufficient explanation for the need for dismissal, and
whether the defendant has filed a motion for summary
judgment. Id. (citing Kovalic v. DEC Int'l,
Inc., 855 F.2d 471, 473 (7th Cir. 1988)).
Court has no indication that Williams requested to dismiss
this matter. Counsel for Williams claims she has been
unreachable for at least a month, and there is no indication
that counsel considered dismissal or consulted with her about
it before filing their motion on August 28, 2019. As of
August 20, 2019, counsel planned instead to respond to
Midland's motion for summary judgment.
Midland has incurred significant expense to defend the
ongoing litigation, which has consisted of multiple delays
and has lacked diligent prosecution. [See DE 24 at
7, PageID #549]. Moreover, a motion for summary judgment has
been pending in the case for a month. Considering the facts
stated above and the timeline of this matter, this Court is
not persuaded by the explanation for need of dismissal of
this action without prejudice. Thus, pursuant to Fed.R.Civ.P.
41(a)(2), this Court denies Williams' Motion to Dismiss
Motion to Withdraw Counsel
courts have broad discretion to determine whether and under
what terms to allow an attorney to withdraw as counsel of
record. McGraw-Hill Global Education, LLC v.
Griffin, 2015 WL 9165965, at *1 (W.D. Ky. 2015) (citing
Brandon v. Blech Counsel, 560 F.3d 536, 537 (6th
Cir. 2009)). Courts in the Sixth Circuit follow applicable
local rules and the Model Rules of Professional Conduct to
guide those determinations. Brandon, 560 F.3d at
538. Under the Eastern District of Kentucky's local
rules, counsel may withdraw from a case only if:
(a) The attorney files a motion, his or her client consents
in writing, and another attorney enters his or her
appearance; or (b) The attorney files a motion, certifies the
motion was served on the client, makes a showing of good
cause, and the Court consents ...