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Humphrey v. Comoletti

United States District Court, D. Massachusetts

April 30, 2018

FRED HUMPHREY, et al., Plaintiffs,
v.
JEFFREY COMOLETTI, et al., Defendants.

          MEMORANDUM AND ORDER

          ALLISON D. BURROUGHS UNITED STATES DISTRICT JUDGE

         Attorneys John B. Harwood, David S. Francazio, and Robert A. D'Alfonso of McKinnon & Harwood LLC have moved for leave to withdraw from their representation of Plaintiff Fred Humphrey. [ECF No. 79]. Defendants take no position on Plaintiff counsel's motion but have moved to dismiss the case for similar reasons. [ECF No. 80 at 2]. Plaintiff's counsel have also sought to extend the deadline to respond to the motion to dismiss until 21 days after a ruling on the pending motion to withdraw. [ECF No. 81]. For the reasons stated herein, the motion to withdraw is GRANTED and the motion for extension of time is GRANTED as follows. Plaintiff shall obtain new counsel to represent him in this matter or file a notice to appear pro se by May 21, 2018 and shall respond to the motion to dismiss by June 4, 2018.

         Plaintiff initiated this action on December 18, 2015. [ECF No. 1]. Motions to dismiss were filed in April and May 2016, after which Plaintiff filed a motion to amend the complaint that the Court allowed. [ECF No. 35]. After a second round of motions to dismiss, on March 31, 2017, the Court dismissed certain of the pending claims and all other plaintiffs from the case. [ECF No. 54]. The Court then held a scheduling conference on September 11, 2017, and issued a scheduling order, which set a deadline for fact discovery to be completed by May 31, 2018. [ECF Nos. 67, 68].

         On December 8, 2017, Defendant Comoletti filed a letter motion to compel Plaintiff to provide written discovery responses to interrogatories and requests for production that were served on October 2, 2017. [ECF No. 71]. Plaintiff's counsel informed Comoletti that the discovery responses were delayed because Plaintiff was out-of-state and his father was on dialysis. Id. Comoletti agreed to extend the discovery response deadline to December 6, 2017. When Plaintiff failed to provide discovery responses by that date, Plaintiff's counsel reported that they were unable to reach Plaintiff for two weeks and could not provide a date for serving discovery responses. Id. After the Court scheduled a hearing on the letter motion, the parties agreed to further extend the deadline until January 9, 2018. [ECF Nos. 72, 75]. The Court cancelled the hearing in accordance with the parties' stipulated extension. [ECF No. 76].

         Although Plaintiff eventually provided his discovery responses, on March 6, 2018, Comoletti filed a second letter motion to compel Plaintiff to appear for his duly noticed deposition. [ECF No. 77]. Comoletti reported that counsel for all parties had agreed to schedule the deposition for March 7, 2018, and that the deposition was properly noticed on February 2, 2018. Id. Plaintiff's counsel informed Comoletti on the morning of March 6, 2018 that Plaintiff now lives in Wisconsin and has not communicated with his counsel in several weeks. Id.

         On March 22, 2018, the court ordered Plaintiff to either (1) be deposed by April 20, 2018 or arrange an extension of this deadline; or (2) show cause by that date as to why he had not done so. [ECF No. 78]. The Court's Order further stated that failure to comply with the Order may result in sanctions, including, but not limited to, dismissal of Plaintiff's case in its entirety. Id.

         Prior to the April 20th deadline, Plaintiffs counsel filed the instant motion to withdraw, citing an irreconcilable breakdown in the attorney-client relationship. [ECF No. 79]. As stated in the motion, Plaintiffs counsel made the following recent communications to their client:

1. Email to Plaintiff on February 2, 2018;
2. Email to Plaintiff on February 23, 2018;
3. Email to Plaintiff on February 27, 2018;
4. Email to Plaintiff on March 1, 2018;
5. Telephone call to Plaintiff on March 4, 2018;
6. Email to Plaintiff on March 4, 2018;
7. Telephone call to Plaintiff on March ...

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