United States District Court, D. Minnesota
Petersen, Rachel Petersen Law Office, counsel for plaintiff
M. Ludmer / Sarah C. S. McLaren, Office of the Minneapolis
City Attorney, counsel for defendants
ORDER AND REPORT AND RECOMMENDATION
KATHERINE MENENDEZ UNITED STATES MAGISTRATE JUDGE
Order on Motion to Withdraw
23, 2017, the Court ordered Rachel Peterson, counsel for Mr.
Garcia-Orihuela, to file a motion to withdraw if she
determined that she was required to withdraw from
representing the plaintiff in this case. ECF No. 18. Ms.
Petersen filed her motion to withdraw, explaining that Mr.
Garcia-Orihuela had not communicated with her and had not
adhered to the terms of the retainer agreement. ECF No. 19.
Ms. Petersen showed that she provided notice of the motion to
Mr. Garcia-Orihuela. Id.; see also ECF No.
20. The defendants do not object to Ms. Petersen's
withdrawal. ECF No. 21. Mr. Garcia-Orihuela was provided
sixty days to contact the Court to indicate whether he has
any objection to the motion to withdraw, ECF No. 18 at 2
¶ 3, but he has raised no objections.
Court finds that Ms. Petersen has complied with Local Rule
83.7(c) and that withdrawal is appropriate. The motion to
withdraw demonstrates that there is good cause for Ms.
Petersen's withdrawal, as her client has failed to
communicate with her during the litigation. See Razor
Capital, LLC v. HP Debt Exchange, LLC, 2014 WL 12599804,
at *8 (D. Minn. Aug. 15, 2014) (“This District has
found good cause to exist where a client fails or refuses to
communicate with counsel.”) (collecting cases). The
Court also finds that Ms. Petersen gave adequate notice of
her motion to withdraw to Mr. Garcia-Orihuela. As a result,
withdrawal is presumptively appropriate. Sanford v.
Maid-Rite Corp., 816 F.3d 546, 549-50 (8th Cir. 2016).
consideration is whether there is any basis in the record to
conclude that Ms. Petersen's withdrawal from
representation would be severely prejudicial to Mr.
Garcia-Orihuela or to the defendants. See Id. (discussing
the prejudice inquiry where withdrawal is presumptively
appropriate). Here, counsel's withdrawal necessitates
dismissal of this case, because Mr. Garcia-Orihuela has not
evidenced an ability or inclination to handle it pro se from
Mexico. And that certainly operates as some prejudice to Mr.
Garcia-Orihuela. However, because the Court recommends
dismissal without prejudice, which will allow him to raise
his claims in the future if he so decides, such prejudice is
not so severe as to preclude counsel's withdrawal.
these reasons, IT IS HEREBY ORDERED that Ms.
Petersen's Motion to Withdraw, ECF No.
19, is GRANTED. However, Ms.
Petersen is required to mail a copy of this Order and Report
and Recommendation to Mr. Garcia-Orihuela.
Report and Recommendation
Court's June 23, 2017 Order instructing Mr. Petersen of
the requirements for obtaining permission to withdraw without
substitution of counsel, the Court also advised Mr.
Garcia-Orihuela of his obligation to obtain representation or
to continue in the litigation pro se. EFC No. 18 at 2 ¶
3. In particular, the Court required Mr. Garcia-Orihuela to
“state whether he intends to pursue the litigation if
the Court grants Ms. Peteron's motion to withdraw.”
Id. Further, the Court advised Mr. Garcia-Orihuela
that “if he fails to contact the Court as required by
this Order, the Court will likely recommend that this matter
be dismissed without prejudice for failure to
Garcia-Orihuela has not contacted the Court as instructed.
Nor does the record reflect that he reached out to Ms.
Petersen to inform her of his desire to continue this
litigation. Because he has given no indication that he
intends to pursue this case, in accordance with the
admonition provided in its June 23, 2017 Order, the Court now
recommends that this action be dismissed without prejudice
for failure to prosecute. See Henderson v. Renaissance
Grand Hotel, 267 Fed.Appx. 496, 497 (8th Cir. 2008) (per
curiam) (“A district court has discretion to dismiss an
action under Rule 41(b) for a plaintiff's failure to
prosecute, or to comply with the Federal Rules of Civil
Procedure or any court order.”).
on the foregoing, and on all of the files, records, and
proceedings herein, IT IS HEREBY RECOMMENDED
THAT this action be DISMISSED WITHOUT
PREJUDICE pursuant to Rule 41(b) for failure to