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Greene v. Jacob Transportation Services, LLC

United States District Court, D. Nevada

March 14, 2018

ROBERT G. GREENE, on behalf of himself and all others similarly situated, Plaintiff,
v.
JACOB TRANSPORTATION SERVICES, LLC, a Nevada corporation dba Executive Las Vegas; JIM JIMMERSON, an individual; and CAROL JIMMERSON, an individual, Defendants.

          MARIO P. LOVATO LOVATO LAW FIRM, P.C. Attorneys for Defendants

          MOTION TO WITHDRAW AS ASSOCIATED COUNSEL FOR DEFENDANTS

          C.W. HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE.

         Attorney Mario P. Lovato, Esq. hereby moves, pursuant to LR IA 11-6(b) withdraw as counsel for Defendants in the above-referenced case. Defendants have counsel in James J. Jimmerson, Esq. and various associates at Jimmerson Law Firm who have represented Defendants in the case since its inception, and who will remain as counsel.

         MEMORANDUM OF POINTS AND AUTHORITIES

         Movant respectfully requests this Court to permit Mario P. Lovato and Lovato Law Firm, P.C. to withdraw as counsel for Defendants. Upon withdrawal, James J. Jimmerson, Esq. and various associates at Jimmerson Law Firm will be remaining counsel for Defendants.

         Local Federal Rule IA 10-6(b) and (e) provide:

(b) No attorney may withdraw after appearing in a case except by leave of the court after notice has been served on the affected client and opposing counsel.
(e) Except for good cause shown, no withdrawal or substitution will be approved if it will result in delay of discovery, the trial, or any hearing in the case. Where delay would result, the papers seeking leave of the court for the withdrawal or substitution must request specific relief from the scheduled discovery, trial, or hearing. If a trial setting has been made, an additional copy of the moving papers must be provided to the clerk for immediate delivery to the assigned district judge, bankruptcy judge, or magistrate judge.

         The Nevada Supreme Court rules governing Nevada attorneys contain similar rules.

         Nevada Supreme Court Rule 46(2) provides: “The attorney in an action or special proceeding may be changed at any time before judgment or final determination . . . [u]pon the order of the court or judge thereof on the application of the attorney or the client." Rule 166(2) of the Supreme Court Rules states, in pertinent part:

2. Except as stated in subsection 3, a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:
* * *
(d) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(e) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(f) other good cause for withdrawal exists.

         James J. Jimmerson and his associates have handled the defense of this case as co-counsel from the date of its inception. See Declaration of Mario P. Lovato, Esq., attached as Exhibit 1.[1]Mr. Jimmerson and his associates, including recently hired associates Kevin Hejmanowski and James M. Jimmerson (son of James J. Jimmerson), have handled recent matters, including engaging in substantial discovery.

         The clients in this case have failed to honor their payment and related obligations under the agreement between movant and the clients. Movant has handled the defense of numerous wage cases of the type being litigated herein to and through conclusion, but the representation cannot be continued in this case. The clients' failure to honor commitments has been a growing issue in the retention and has resulted in numerous direct meetings and other direct conversations between movant and the clients in this case. It has previously required movant to withdraw from representing the client in similar litigation, which was granted by the Court therein (Case No. 2:14-CV-1135 (see Dkt 76)); it has required movant to decline representation in other wage litigation matters requested by the client.

         There has been a breakdown in communication between movant and the client. Prior to mid-February of this year, movant had been in direct communication with Mr. Jimmerson, who was the primary client representative directing the litigation, and spoke numerous times with the client representative through and to February 13, 2018. After such date, there has been a breakdown in communication between movant and client. Commencing on February 16, 2018, movant received numerous email communications from the client representatives wherein, rather than satisfying obligations to movant's firm, the breakdown in attorney-client relationship was escalated and increased to the point where this motion to withdraw must be filed. Such emails from the client representatives revealed the clients' failure to honor the obligations of the retention, revealed dramatically inconsistent instructions on how to proceed in the case, and contained incorrect characterizations of the case and the dealings between attorney and client.

         In recent weeks, movant has been unable to reach the primary client representative to discuss the failure of clients to satisfy the clients' obligations under the retention, and to otherwise attempt to resolve matters. Numerous calls were made by movant to discuss matters directly, which were followed up via email communication. When arrangements were actually made by movant with the client representative's office for a telephone conference, the client representative failed to ...


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