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Williams v. Midland Funding, LLC

United States District Court, E.D. Kentucky, Lexington

September 4, 2019



          Joseph M. Hood, Senior U.S. District Judge


         This 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.


         Plaintiff 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].

         Instead 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.].


         A. Williams' Motion to Dismiss

         Once a 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)).

         The 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.

         Additionally, 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 Without Prejudice.

         B. Motion to Withdraw Counsel

         District 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 ...

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