United States District Court, N.D. Iowa, Cedar Rapids Division
JERRY L. NIBECK, Plaintiff,
ADAM CIRKL and MARK KJORMOE, Defendants.
Williams Chief United States Magistrate Judge Northern
District of Iowa
matter is before the Court pursuant to Plaintiff's Motion
to Withdraw (Doc. 47) and Motion to Stay (Doc. 48) the time
to respond to Defendants' Motion for Summary Judgment
(Doc. 43). For the reasons that follow, the Court grants
FACTUAL AND PROCEDURAL HISTORY
filed this suit pro se on June 10, 2016. (Doc. 1). On August
29, 2016, plaintiff filed a pro se motion for appointment of
counsel. (Doc. 19). On September 8, 2016, the Court entered
an order denying that motion. (Doc. 21). On November 16,
2016, attorney Blake Parker entered his appearance on behalf
of plaintiff. (Doc. 29). Trial is scheduled for December 18,
2017. (Doc. 34).
August 17, 2017, defendants filed a Motion for Summary
Judgment. (Doc. 43). Plaintiff's resistance was due on
September 7, 2017. LR 7(e) (a resistance to a motion for
summary judgment is due within twenty-one days). Plaintiff
filed a pro se resistance to the Motion for Summary
Judgment on August 28, 2017. (Doc. 46).
August 29, 2017, counsel for plaintiff filed both a Motion to
Withdraw, citing irreconcilable differences and urging that
good cause exists to allow counsel to withdraw (Doc. 47-1),
and a Motion to Stay, seeking to stay the time for filing a
resistance pending resolution of the Motion to Withdraw (Doc.
48). As support for the Motion to Withdraw, counsel turns to
the pro se resistance plaintiff filed in which
plaintiff alleges his own counsel colluded with counsel for
defendants and threatened to drop plaintiff's case. (Doc.
47-1). Defendants filed a resistance to both motions. (Doc.
49). Plaintiff also filed a pro se resistance to the motion
to withdraw. (Doc. 50).
September 26, 2017, the Court held a hearing on these pending
motions. Plaintiff's counsel indicated that
plaintiff's conduct in filing documents pro se, and the
allegations plaintiff has made against plaintiff's
counsel, along with other matters that plaintiff's
counsel could not reveal without breaching the
attorney-client privilege, has resulted in a breakdown in the
attorney-client relationship. Plaintiff's counsel
indicated that he believed he had an ethical obligation to
withdraw as counsel. Defendants indicated they did not
dispute the factual issues giving rise to the attorney-client
conflict or the breakdown in that relationship. Nevertheless,
defendants objected to the withdrawal and the extension of
any deadline for plaintiff to respond to the pending motion
for summary judgment. To the credit of defense counsel,
defendants conceded that there was no real prejudice to a
further extension of the deadline other than the general
right a party has to the speedy resolution of a legal
dispute, as reflected in Rule 1 of the Federal Rules of Civil
Procedure. Plaintiff indicated an intent to hire new counsel
if his attorney was allowed to withdraw.
Rule 83(d)(6) provides that “[a] lawyer who has
appeared in a case and desires to withdraw from
representation of a party is not relieved of his or her
duties to the court, to the client, or to opposing counsel
until” either (A) new counsel enters an appearance or
“(B) the withdrawing lawyer has filed a motion withdraw
. . . and has received leave of court to withdraw for good
cause shown.” LR 83(d)(6). Pursuant to the Iowa Rules
of Professional Conduct, an attorney “may withdraw from
representing a client” upon a showing of “good
cause.” Iowa Rule 32:1.16(b)(7). Here, plaintiff's
insistence on filing pro se pleadings while represented by
his attorney, combined with the nature of the allegations
plaintiff has made against his attorney (suggesting his
attorney is in collusion with defendants), provides good
cause for plaintiff's counsel to withdraw.
Plaintiff's conduct has placed his attorney in a position
where the attorney can no longer ethically represent
plaintiff and has created irreconcilable differences between
plaintiff and his attorney. Accordingly, the Court grants
plaintiff's counsel's motion to withdraw. (Doc. 47).
Court will now turn to plaintiff's motion to stay or
extend the deadline for responding to the pending motion for
summary judgment. First, plaintiff's attempted pro se
resistance to the motion for summary judgment will not be
recognized by the Court because plaintiff was represented by
counsel when it was filed. United States v. Hunter,
770 F.3d 740, 746 (8th Cir. 2014) (“It has long been
Eighth Circuit policy that when a party is represented by
counsel, we will not accept pro se briefs for filing.”
(citations and internal quotation marks omitted)).
Plaintiff's pro se filing also failed to comply with
Local Rule 56. Second, the Court is sympathetic to
defendants' desire for a speedy resolution of this
lawsuit. This Court takes very seriously the mandate of Rule
1 of the Federal Rules of Civil Procedure and laments the
additional cost in time and money occasioned by delays in the
resolution of civil cases. Nevertheless, the Court cannot
find that defendants would be seriously prejudiced by a short
extension of time to allow plaintiff to retain new counsel
and to file a resistance to the motion for summary judgment.
In contrast, failing to provide plaintiff more time to file a
resistance to a dispositive motion, under the circumstances,
would cause him obvious and serious prejudice. Accordingly,
the Court grants plaintiff's motion to stay. (Doc. 48).
reasons stated above, the Court grants
plaintiff's counsel's motion to withdraw (Doc. 47)
and motion to stay (Doc. 48). Plaintiff will have until
October 30, 2017, to retain new counsel and have that
attorney enter his or her appearance. If no attorney enters
an appearance on behalf of plaintiff by that deadline, the
Court will consider plaintiff to be proceeding pro se in this
matter. Plaintiff shall file any resistance to the pending
motion for summary judgment no later than November 30, 2017.
The Court reminds plaintiff that any resistance filed by
plaintiff must be in full compliance with Local Rule 56. The
Court will set a new trial date and trial-related deadlines
in a separate order.