United States District Court, M.D. Florida, Fort Myers Division
MIRANDO UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court upon review of Merlin Law
Group, P.A.'s Motion to Withdraw as Counsel of Record for
Plaintiff, filed on May 7, 2018, Defendant's Motion for
Appointment of Magistrate Judge to Supervise Depositions
Where Plaintiff is Present, filed on April 20, 2018, and
Defendant's Motion for Cease and Desist Order, filed on
April 17, 2018 Docs. 18, 21, 27. For the reasons stated
below, Merlin Law Group, P.A.'s motion will be granted,
and Defendant Rockhill Insurance Company's
(“Rockhill”) motions will be denied without
the Merlin Law Group, P.A., including attorneys Kelly L.
Kubiak, Esq. and Eric Dickey, Esq., seeks to withdraw as
counsel of record for Plaintiff Howard Frank due to
“irreconcilable differences” that “render
the continued representation of the Plaintiff unreasonably
difficult to continue and not in the best interests of the
client.” Doc. 27 at 1. A motion to permissively
withdraw is a matter within the discretion of the court.
Obermaier v. Driscoll, No. 2:00-CV-214-FtM-29D, 2000
WL 33175446, at *1 (M.D. Fla. Dec. 13, 2000). Under the Local
Rules, “no attorney, having made a general appearance
under subsection (a) of [Local Rule 2.03] shall thereafter
abandon the case or proceeding in which the appearance was
made, or withdraw as counsel for any party therein, except by
written leave of Court obtained after giving ten (10)
days' notice to the party or client affected thereby, and
to opposing counsel.” M.D. Fla. Rule 2.03(b). Since the
re-filing of Merlin Law Group, P.A.'s motion, Plaintiff
has been provided the requisite notice. Doc. 27 at 2.
Accordingly, counsel will be permitted to withdraw, and
Plaintiff shall have up to and including June 11,
2018 to retain counsel and have counsel file a
Notice of Appearance with the Court or to notify the Court he
intends to proceed pro se.
Rockhill seeks a cease and desist order and the appointment
of a Magistrate Judge to oversee depositions. Docs. 18, 21.
In both motions, counsel for Rockhill indicated she was
unable to confer with counsel for Plaintiff given his
counsel's requested withdrawal, which also prevented
Plaintiff from responding to the motions. See Doc.
18 at 4-5; Doc. 21 at 2. Although the Court understands the
reasons Rockhill was unable to confer regarding its motions,
both of the motions will be denied without prejudice due to
the inability to properly confer. Rockhill may refile its
motions if necessary after Plaintiff either has retained
counsel or notified the Court of his intention to proceed
pro se and the parties have had the opportunity to
meaningfully confer. Until such time, the Court directs
Plaintiff not to communicate with or leave messages for
Rockhill or its employees.
Court notes Plaintiff's previous counsel requested thirty
(30) days for Mr. Frank to retain new counsel, and the Court
encourages him to do so. See Doc. 27 at 2; see
also Montgomery v. Brickell Place Condo. Ass'n, No.
11-24316-CIV, 2012 WL 1203837, at *3 (S.D. Fla. Apr. 11,
2012) (encouraging pro se plaintiff to “retain
legal counsel and, failing that, to diligently research how
to prosecute” a case in federal court because pro
se parties are responsible for discovery, complying with
scheduling orders, and following federal and local rules). If
Mr. Frank decides to proceed pro se, he is warned
that “the right of self-representation does not exempt
a party from compliance with relevant rules of procedural and
substantive law.” Sanders v. Fluor Daniel,
Inc., 151 F.R.D. 138, 139 (M.D. Fla. 1993),
aff'd sub nom. Sanders v. Fluor Daniels, Inc.,
36 F.3d 93 (11th Cir. 1994) (quoting Kersh v.
Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988)). Mr.
Frank also must comply with the Middle District of Florida
Local Rules. Failure to comply with the Court's Orders or
the Federal or Local Rules could result in sanctions. A copy
of the Local Rules may be obtained from the Court's
website at http://www.flmd.uscourts.gov/. Moreover, the
website includes a “Litigants without Lawyers”
page containing tips, frequently asked questions, sample
forms, and a “Guide for Proceeding without a
Merlin Law Group, P.A.'s Motion to Withdraw as Counsel of
Record for Plaintiff (Doc. 27) is GRANTED.
The Clerk of Court is directed to terminate Kelly L. Kubiak,
Esq., Eric Dickey, Esq., and the Merlin Law Group, P.A. as
counsel of record for Plaintiff Howard Frank and remove them
from receiving future notices of electronic filings.
Plaintiff Howard Frank shall have up to and including
June 11, 2018 to retain counsel and have
counsel file a Notice of Appearance with the Court or to
notify the Court he intends to proceed pro se.
Defendant's Motion for Appointment of Magistrate Judge to
Supervise Depositions Where Plaintiff is Present (Doc. 21) is
DENIED without prejudice.
Defendant's Motion for Cease and Desist Order (Doc. 18)
is DENIED without prejudice.
Plaintiff shall not communicate with or leave messages for
Rockhill or its employees until he has retained counsel and
counsel has filed a Notice of Appearance, or he has notified
the Court he intends to proceed pro se .