Case 1:16-cv-01318-GBD-BCM Document 255 Filed...
Transcript of Case 1:16-cv-01318-GBD-BCM Document 255 Filed...
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
JOINT STOCK COMPANY CHANNEL ONE RUSSIA WORLDWIDE, et al. ,
Plaintiffs,
-against-
INFOMIR LLC, et al .,
Defendants.
USDCSDNY 'DOCUMENT ;ELE(::TRONiCALLY Fl·LED ·ooc#:
~~~~~~~~-
DATE FILED: 1 I 9/ 17 16-CV -1318 ( G . . .
ORDER
BARBARA MOSES, United States Magistrate Judge.
Before the Court is a motion by Alan P. Fraade, Esq., made pursuant to Local Civil Rule
1.4, for leave to withdraw as counsel for defendant Panorama Alliance LP (Panorama) on the
ground that, since losing a motion to dismiss for lack of personal jurisdiction, Panorama has
become "unresponsive" and is "no longer cooperating" with its attorney, putting Fraade in "an
untenable position." Fraade Deel., filed April 4, 2017 (Dkt. No. 209), ~ 11 ; see also Panorama
Mem. in Supp., filed April 4, 2017 (Dkt. No. 210), at 2 (citing a "breakdown in communication"
as a factor warranting withdrawal).
Neither plaintiffs nor Panorama oppose the motion.1 However, plaintiffs ask that the
withdrawal be subject to two conditions: (1) that the Court retain jurisdiction over Fraade and his
firm, the Mintz Fraade Law Firm, P.C (Mintz Fraade) for the purposes of plaintiffs ' two pending
sanctions motions; and (2) that Fraade produce various documents and sit for deposition. See Pl.
Mem. in Resp., filed April 18, 2017 (Dkt. No. 233), at 5-6; Pl. Prop. Order, filed April 18, 2017
1 By Order dated March 30, 2017 (Dkt. No. 204), the Court provided Panorama with instructions concerning when and how it could respond to its attorney's withdrawal motion should it wish to do so. Because Fraade failed to serve the March 30 Order on his client until April 28, 2017 (see Dkt. No. 246), the Court issued another Order, dated May 1, 2017 (Dkt. No. 247), extending the time for Panorama' s response through May 8, 201 7. Attorney Fraade then filed a proof of service attesting that he served the May 1 Order on Panorama that same day by Federal Express and by email. (See Dkt. No. 248.) The Court has not received any submission from Panorama.
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(Dkt. No. 233-1). For the reasons that follow, the withdrawal motion will be GRANTED subject
to the more limited conditions described below.
BACKGROUND2
Plaintiffs are a group of Russian television broadcasters suing to redress what they
characterize as the "pirating" and resale of their programming to consumers in the United States,
over the internet, without authorization or license fees . Defendant Panorama allegedly sells
subscriptions to plaintiffs' programming through its website at www.mypanorama.tv (the Website)
to Russian-speaking customers in New York and elsewhere. First Am. Compl. (Dkt. No. 211)
i1i139, 42, 96.
A. Plaintiffs Attempt Service and Move for a Default Judgment
In their original Complaint, plaintiffs alleged that Panorama operated out of premises at
1702 Avenue Z, Brooklyn, New York (the Avenue Z Address), which is where they attempted
service of process on March 16, 2016. See Compl. (Dkt. No. 1) i157; Aff. of Service (Dkt. No. 40)
at 1. When Panorama did not answer or otherwise respond to the Complaint, plaintiffs obtained a
clerk's certificate of default (Dkt. No. 45) and moved for a default judgment. (Dkt. No. 54.)
B. Panorama Appears Through Fraade
Panorama first appeared in this action, through attorney Fraade, on May 13, 2016. (Dkt.
No. 58 .) On May 20, 2016, Fraade explained in a letter to the Court (Dkt. No. 61) that his client
was organized under the laws of the United Kingdom, had no offices or employees in the United
States, and could not have been effectively served with process at the A venue Z Address. Fraade
2 The factual background and procedural history of this action are described in more detail in the Court' s prior decisions. See, e.g., Joint Stock Company Channel One Russia Worldwide v. Infomir, LLC, 2017 WL 825482 (S.D.N.Y. Mar. 2, 2017), report and recommendation adopted, 2017 WL 1321007 (S .D.N.Y. Mar. 30, 2017).
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argued, "That a business in Brooklyn, New York, which may be an unrelated distributor, uses the
banner, Panorama TV does not connote that such premises are an office of Panorama TV UK." Id.
On June 10, 2016, in opposition to the pending default motion, Fraade filed a declaration
signed in the name of David "Zeltser," who identified himself as Panorama's Managing Director.
Zeltser Deel., filed June 10, 2016 (Dkt. No. 75), at 1. Zeltser stated that Panorama was a limited
partnership formed under the laws of the United Kingdom, with its principal address at 44 Main
Street, Douglas, South Lanarkshire, and attached its one-page "Certificate of Registration of a
Limited Partnership" (Certificate), dated August 13, 2013. Id. at 1, Ex. A. Zeltser stated that
Panorama had no office in New York and did no business here. Id. He specifically denied that the
Avenue Z Address was "associated with Panorama Alliance, LP." Id. at 1-2.
At a conference before me on July 22, 2016, Fraade accepted service of process on his
client's behalf. Thereafter, in an Order issued the same day (Dkt. No. 95), I vacated the default
certificate as to Panorama, authorized Panorama to file a motion to dismiss for lack of personal
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2), and set a briefing schedule for that motion. I also
granted plaintiffs' request to conduct limited jurisdictional discovery as to Panorama.
C. Jurisdictional Discovery
Plaintiffs served their jurisdictional discovery demands on July 27, 2016, including both
document production requests and interrogatories. See Blaustein Deel., filed Oct. 17, 2016 (Dkt.
No. 128), ,-i 14. Panorama's responses, signed by attorney Fraade,3 were remarkably uninformative
3 Panorama's responses to plaintiffs' document production requests were signed only by Fraade. See Doc. Req. Resp., dated August 19, 2016 (Dkt. No. 135-2), at 5. Its interrogatory answers were signed by Fraade and accompanied by a one-page declaration in the name of David "Zeltzer," stating that Zeltzer "was consulted" regarding the interrogatories, read them, and knew them to be true. See Interrog. Ans., dated August 18, 2016 (Dkt. No. 125-5), at 7, 8. The declaration does not, however, state that Zeltzer read the interrogatory answers, or knew the answers to be true. Id. at 8. Moreover, in place of Zeltzer's signature on the August 18 declaration there is only his typed
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and, in a number of respects, implausible, as described in more detail in Joint Stock Company
Channel One Russia Worldwide, 2017 WL 825482 at *2-3. Although Panorama did not object to
any of plaintiffs' document requests, it claimed not to possess a single responsive document-
beyond the one-page Certificate it previously submitted-concerning its partners; its corporate and
management structure; its registration, ownership, and management of the Website; its payments
to Domains by Proxy or other website hosting companies; its registration of the 1-800 telephone
number displayed on the Website; its relationship with the Avenue Z address; or its agreements or
contracts with New York residents (such as those subscribing to its service). See Doc. Req. Resp.
at 2-5. Similarly, in its interrogatory answers, Panorama attested that its only partner was David
"Zeltser,"4 that it had no business relationship with any person or entity in the United States, and
that it had no "authorized representatives" here. See Interrog. Ans. at 3, 8, 23. Panorama
specifically denied any relationship with "any person or entity located at or doing business at" the
Avenue Z Address. Id. at 4. 5
name. Id. It thus appears that the interrogatory answers violated Fed. R. Civ. P. 33(b)(l)(B) (interrogatories to a partnership must be answered by an officer or agent thereof) and Fed. R. Civ. P. 33(b)(5) ("[t]he person who makes the answers must sign them"). See also Southern District of New York Electronic Case Filing Rules & Instructions, § 8.4 ("[a] document requiring the signature of a party or witness shall be electronically filed in a scanned format that contains an image of the actual signature"). 4 Perhaps attorney Fraade was not aware, when he signed Panorama's interrogatory answers, that according to its Form LP-5, on file with the United Kingdom government, Zeltser was not a partner at all (no matter how his name was spelled). Although the Form LP-5 was never produced by Panorama in this action, it is publicly available on the website of Companies House in the United Kingdom. See https://beta.companieshouse.gov. uk/company/SLO 13886/filing-history (last visited May 9, 2017). The Form LP-5 states that Panorama has one general partner, listed as "Broad Admin Ltd.," and one limited partner, listed as "Alfa Admin Ltd." Id. 5 Perhaps attorney Fraade did not notice, when he signed Panorama's interrogatory answers, that his client's Website displayed the Avenue Z Address, along with a Brooklyn telephone number, under the headline "Panorama TV Authorized Dealer." See Blaustein Deel., filed Oct. 28, 2016 (Dkt. No. 137-2), Ex. B.
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D. The Rule 12(b )(2) Motion
On August 25, 2016, Fraade filed Panorama' s motion to dismiss, supported by the
declaration of David "Zeltzer," who attested once again that Panorama was a limited partnership
formed under the laws of the United Kingdom; that it had no office at the Avenue Z Address or
elsewhere in the State of New York; and that it did not do any business here. Zeltzer Deel. , filed
Aug. 25 , 2016 (Dkt. No. 110), ilil 1, 7-10. The motion was also supported by an Affirmation in
which attorney Fraade stated, under penalty of perjury, that Panorama "does not advertise in the
United States or New York, nor does [it] actively seek consumers within the United States." Fraade
Aff., filed Aug. 25 , 2016 (Dkt. No. 109), if 12.6
E. The September 8, 2016 Conference
On September 8, 2016, during a telephonic discovery conference, I directed Panorama to
search its documents again and to produce any responsive materials by September 19, 2017. See
Joint Stock Company Channel One Russia Worldwide, 2017 WL 825482 at *4; Tr. of Sept. 8, 2016
Conf. (Dkt. No . 123) at 15:21-16:1, 19:5-10. Attorney Fraade assured the Court that he would
"clarify with my client and make sure they provide the proper information." Id. at 16:13-14.
However, Panorama did not produce any additional documents. In a letter dated September 19,
2016 (Dkt. No. 125-1), Fraade stated, "Mr. Zeltser has again advised us that Panorama has
produced all responsive documents and agreements," and that "all of the answers which were
already provided were accurate to the best of his knowledge."
6 In New York State practice, an attorney's affirmation "may be served or filed in the action in lieu of and with the same force and effect as an affidavit." N.Y.C.P.L.R. Rule 2106.
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F. The Yevdayev Deposition
Stymied by Panorama, plaintiffs next sought permission, which I granted (Dkt. No. 126),
to serve a subpoena for documents and deposition testimony on Asaf Yevdayev, whom they
believed to be a dealer or reseller of Panorama's product operating out of the A venue z Address.
Attorney Fraade represented Yevdayev at his deposition, during which the witness acknowledged,
among other things, that he worked at the Avenue Z Address, selling subscriptions to Panorama's
"IPTV" (internet protocol television) service, which he advertised in local Brooklyn newspapers.
Yevdayev Dep. Tr., Oct. 20, 2016 (Dkt. No. 137-1), at 5:3-8, 32:10-21, 34:3, 38:8-9, 51:17-21,
97: 17-20. The telephone number of the Avenue Z Address was the same number shown on the
Panorama Website, and the signage at the premises included "[a] sign of Panorama TV, My
Panorama TV outside the building." Id. at 31:18-24, 32:10-21, 51:25-52:8, 64:9-66:21, 97:17-18.
Y evdayev obtained the subscriptions in bulk from Panorama by logging in to the Website through
a "special link" for "dealers, resellers"-paying by wire transfer-and then resold them to
consumers in New York and elsewhere. Id. at 39:18-22, 45:7-45:3, 48:22-49:7, 57:9-24. Yevdayev
confirmed that Panorama knew he was reselling its service locally. Id. at 46: 19-47:12. The Avenue
Z Address and Yevdayev's Brooklyn telephone number were listed on the Website "because we
sell their product." Id. at 103: 8-17. Y evdayev received technical support from Panorama both by
telephone and through an online "ticket system." Id. at 84:20-24, 85:21-86:24, 89:15-16.
In addition, Y evdayev testified, he himself "bought" and registered the domain name
www.mypanorama.tv, "ten years ago or a long time ago." Yevdayev Dep. Tr. at 105:8, 106:2-6,
107:2-3. Thereafter, he testified, he "transferred the ownership" of the domain name to "Panorama
company in U.K." Id. at 108:16-22, 110:9-11, 111:14-24, 112:7-13. Shown a document recently
produced by Domains by Proxy, Inc., listing Yevdayev as the registrant, technical, administrative,
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and billing contacts for the domain name www.mypanorama.tv (Dkt. No. 125-6), Yevdayev was
"curious myself why my name is still on it." Id. at 106:9-10. "[I]t shouldn't be there but it is still
there." Id. at 106:25.7
G. The Sanctions Motions
On October 17, 2016, Panorama filed a motion pursuant to Fed. R. Civ. P. 37(b)(2)(A)
(Dkt. No. 127), seeking discovery sanctions against Panorama and attorney Fraade for failing to
comply with this Court's orders regarding jurisdictional discovery. On October 28, 2016,
Panorama filed a second sanctions motion, pursuant to Fed. R. Civ. P. 11 (Dkt. No. 134), arguing
that Panorama's Rule 12(b )(2) motion was frivolous and should have been withdrawn. 8
In response to the Rule 3 7 motion, attorney Fraade filed a declaration stating, among other
things, that Panorama "produced the only responsive documents it had in its control or possession,"
and that sanctions against its counsel would be "inappropriate," in that he made "good faith efforts
to obtain the truth from Panorama" and "all attempts to ensure that Panorama complied with the
Court's order." Fraade Deel., filed Oct. 24, 2016 (Dkt. No. 131), ~~ 11, 17. Fraade also filed
another declaration in the name of David "Zeltser"-once again bearing only the declarant's
typewritten name on the signature page-stating, among other things, that to the "best of its
7 Y evdayev did not produce any documents in response to plaintiffs' subpoena, claiming at deposition that he searched his records but did not discover any documents concerning "the ownership or operation of the Website," "communications between [Yevdayev] and Panorama," any "relationship between [Yevdayev] and Panorama," or "Panorama's business in the United States." Yevdayev Dep. Tr. at 63 :3-25. Although plaintiffs later filed a sanctions motion against Panorama for its discovery misconduct (discussed below), they did not move to compel or otherwise seek additional discovery from Yevdayev. 8 In accordance with Rule 11 's "safe harbor" provision, Fed. R. Civ. P. 1 l(c)(2), the motion was served on October 6, 2016, 21 days before it was filed, to give Panorama an opportunity to withdraw its Rule 12(b)(2) motion without penalty. See Blaustein Deel., filed Oct. 28, 2016 (Dkt. No. 135), ~ 4. Panorama did not avail itself of that opportunity, even after Yevdayev testified on October 20, 2016.
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knowledge," Panorama provided "full and accurate responses" to plaintiffs ' jurisdictional
discovery requests. Zeltser Deel., filed Oct. 24, 2016 (Dkt. No. 132), ~ 9.
In response to the Rule 11 motion, attorney Fraade filed a declaration stating, among other
things, that "Panorama has consistently maintained that it has no relationship with Mr. Yevdayev,
rather he is just a reseller of Panorama products." Fraade Deel., filed Nov. 14, 2016 (Dkt. No. 142),
~ 15. Fraade went on to argue that there are "reasonable bas[ e] s upon which this Court could find
it lacks personal jurisdiction over Panorama,'' such that Rule 11 sanctions would be
"inappropriate." Id. ~ 23 .
In addition, Fraade addressed the sanctions motions in Panorama's reply brief in further
support of its motion to dismiss for lack of personal jurisdiction, arguing that the Rule 11 motion
was merely an effort "to coerce Panorama into withdrawing its motion,' ' and that "Panorama
responded to Plaintiffs' interrogatories as best it could." Panorama Reply Mem., filed Nov. 2, 2016
(Dkt. No. 141), at 2-3. The reply also asserted that it was "indisputable" that Panorama "does not
have authorized representatives in New York." Id. at 2.
H. Denial of the Rule 12(b )(2) Motion
On March 2, 2017, I recommended that the District Judge deny Panorama' s Rule 12(b)(2)
motion. Joint Stock Company Channel One Russia Worldwide, 2017 WL 825482, at * 16.
Panorama did not object to my Report and Recommendation, and on March 30, 2017, the
Honorable George B. Daniels, United States District Judge, adopted it in full and denied the
motion. (Dkt. No. 205.)
I. The Motion for Leave to Withdraw
On March 27, 2017-after the deadline for objecting to the Report and Recommendation
passed- Fraade submitted a letter to the District Judge (Dkt. No. 202), requesting leave to move
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to withdraw as counsel for Panorama. On March 29, 2017, plaintiffs submitted a responding letter
(Dkt. No. 203), requesting that the issue be referred to the undersigned Magistrate Judge. By Order
dated March 30, 2017 (Dkt. No. 204), I noted that "[t]he anticipated motion falls within the scope
of the existing referral," and set a briefing schedule.
Fraade filed his motion papers on April 4, 2017 (Dkt. Nos. 208-210), and served them on
his client by Federal Express and email on April 7, 2017. Deel. of Service, filed April 29, 2017
(Dkt. No. 245), at 1. The moving papers included a copy of Mintz Fraade's Retainer Agreement
with Panorama, dated May 9, 2016.
On April 5, 2017, plaintiffs filed a letter-motion to compel discovery. They noted that the
Retainer Agreement includes the statement: "Panorama TV has its office in the State of New
York." Ret. Ag. (Dkt. No. 209-1) at 4. They also pointed out that the signature on the Retainer
Agreement (which is indecipherable and has no printed or typed name beneath it) does not match
the signature of David "Zeltzer" (or David "Zeltser") as it appeared on the declarations filed in
this action. Id. at 8. Plaintiffs requested that the Court enforce its July 22 and September 8, 2016
orders regarding jurisdictional discovery by directing Mintz Fraade "to tum over all relevant
communications pertaining to the Retainer Agreement and [Panorama' s] presence in New York,"
in particular the transmittal and reply emails associated with the Retainer Agreement. Pl. Ltr. , filed
April 5, 2017 (Dkt. No. 213), at 3. In addition, plaintiffs requested that the Court "consider this
new evidence" in connection with the pending sanctions motions. Id.
Attorney Fraade responded two days later, asserting that the statement "Panorama TV has
its office in the State of New York" was an "unfortunate drafting mistake" by an unnamed associate
who accidentally included "erroneous" "boilerplate" language in the retainer agreement, and that
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he has "no knowledge of who signed the Retainer Agreement." Fraade Ltr., filed April 7, 2017
(Dkt. No. 214), at 1-2.
On April 18, 2017, when plaintiffs filed their formal response to the motion for leave to
withdraw, they once again requested that Fraade be ordered to provide discovery, this time as a
condition of withdrawal. Pl. Mem. in Resp., filed April 18, 2017 (Dkt. No. 233), at 6. However,
their proposed Order, filed along with their brief (Dkt. No. 233-1 ), would go considerably beyond
the jurisdictional discovery previously authorized. Plaintiffs request, for example, that Fraade and
his firm be ordered to tum over "all documents within their possession relating to Asaf Y evdayev
and David Zeltser a/k/a David Zeltzer," and that Fraade himself sit for deposition regarding all
issues relevant to plaintiffs' motions for sanctions and counsel's motion for leave to withdraw. Id.
at 2-4.
J. The Initial Case Management Conference
At the initial case management conference in this action on April 19, 201 7, plaintiffs stated
(upon inquiry from the Court) that they desired an expeditious decision on their sanctions motions
and would prefer that those motions be decided on the present record, without awaiting further
discovery. Tr. of April 19, 2017 Conf. (Dkt. No. 238) at 38:2-39:4. Accordingly, I denied
plaintiffs' letter-motion to compel, without prejudice to their ability to seek similar discovery in
the ordinary course. (Dkt. No. 237.)
K. Counsel's Reply Brief
On April 25, 2017, Fraade submitted a reply brief in support of his motion for leave to
withdraw, supported by a declaration in which he attests, among other things, that he is "unaware
of why the signature appears the way it does in the retainer agreement" and does not know who
signed it on behalf of Panorama. Fraade Deel., filed April 25, 2017 (Dkt. No. 240), ii 5. Fraade
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also states that the information set forth in his declaration in support of Panorama's Rule 12(b )(2)
motion "was based upon the information provided by Plaintiff, which I believed to be true at the
time. It was not until a substantial time later that more information came to light." Id. iJ 8.
ANALYSIS
Local Civil Rule 1.4, governing the withdrawal of counsel, provides in relevant part as
follows:
An attorney who has appeared as attorney of record for a party may be relieved or displaced only by order of the Court and may not withdraw from a case without leave of the Court granted by order. Such an order may be granted only upon a showing by affidavit or otherwise of satisfactory reasons for withdrawal or displacement and the posture of the case, including its position, if any, on the calendar, and whether or not the attorney is asserting a retaining or charging lien.
Faced with a motion to withdraw pursuant to Rule 1.4, the district court must consider both "the
reasons for withdrawal and the impact of the withdrawal on the timing of the proceeding." Thekkek
v. LaserSculpt, Inc., 2012 WL 225924, at *2 (S.D.N.Y. Jan. 23, 2012).
Fraade reports that Panorama "has been unresponsive to my communications," particularly
smce March 2, 2017, when Fraade provided his client with a copy of my Report and
Recommendation. Fraade Deel., filed April 4, 2017, iJ 9. Since that date Panorama "has either
routinely failed to, or delayed, responding to my attempts at contacting it." Id. iJ 10. Counsel's last
"substantive response" from its client was on February 24, 2017, when Mr. "Zeltzer" "returned an
executed document with respect to the Preliminary Injunction Motion." Id. 9 Since Panorama "is
no longer cooperating" with counsel, "is not even making the appearance of cooperating," and is
9 That "executed document" was presumably the declaration of David "Zeltser," filed in opposition to plaintiffs' motion for a preliminary injunction on February 24, 2017. (Dkt. No. 193.) However, in place of the witness's signature on that declaration, there is only his typed name, see id. at 4, in apparent violation of§ 8.4 of the Electronic Case Filing Rules & Instructions.
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"not following [counsel ' s] advice and direction," Fraade has been placed m an "untenable
position" and is unable to "vigorously represent" his client. Id. ifil 11 , 14. 10
"Satisfactory reasons for withdrawal" may "include a client's lack of cooperation,
including lack of communication with counsel." Farmer v. Hyde Your Eyes Optical, Inc., 60 F.
Supp. 3d 441 , 445 (S.D.N.Y. 2014) (internal quotations and citations omitted); accord Chen v.
Wai? Cafe Inc., 2016 WL 722185, at *6 (S .D.N.Y. Feb. 19, 2016). The breakdown in
communication and cooperation described by Fraade is adequate grounds for withdrawal,
especially where, as here, neither the plaintiffs nor the client opposes the motion. See, e.g., Farmer,
60 F. Supp. at 445 (collecting cases). In addition, there is little risk of prejudice to Panorama, or to
other parties, since the jurisdictional and pleading motions were only recently resolved, general
discovery has just begun, and this action is otherwise still in a relatively early phase. See, e.g. ,
Karimian v. Time Equities, Inc., 2011WL1900092, at *3 (S.D.N.Y. May 11, 2011) ("[w]here
discovery in a case has not yet closed and the case is not on the verge of trial readiness, prejudice
is unlikely to be found .") (internal quotations and citations omitted).
Plaintiffs are correct that this Court may retain jurisdiction over a withdrawing attorney in
connection with a pending sanctions motions. "Just as courts retain jurisdiction to apply Rule 37
sanctions after a case has been dismissed, a court may hold an attorney responsible for discovery
noncompliance even after he or she has been relieved as counsel ... [and] may condition the grant
10 In addition, Fraade notes that Panorama owes "substantial fees," and "has made it clear that it did not wish to continue to pay legal fees for the proceeding in the United States." Fraade Deel. , filed April 4, 2017, if 12. However, Fraade does not seek withdrawal on this basis and has not provided further detail regarding his bills, or the client' s arrears, as would be required were this the basis for his application. See, e.g., Rophaiel v. Alken Murray Corp. , 1996 WL 306457, at * 1-2 (S .D.N.Y. June 7, 1996) (requiring financial statements and tax returns demonstrating inability to pay before considering withdrawal motion). Mintz Fraade has waived any retaining or charging lien. Fraade Deel. , filed April 4, 2017, if 19.
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of the motion to withdraw upon [counsel's] presence at the Rule 37 proceedings." Hakim v.
Leonhardt, et al., 126 F. App'x. 25, at 26 (2d Cir. 2005) (summary order). See also Dangerfield v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 2003 WL 22227956, at *7 (S .D.N.Y. Sept. 26, 2003)
("an attorney's withdrawal from a case does not prevent the imposition of Rule 11 sanctions for
papers filed prior to the withdrawal"); Logicom Inclusive, Inc. v. WP. Stewart & Co., 2008 WL
1777855, at *2 (S.D.N.Y. Apr. 16, 2008) (attorney's "withdrawal from the case does not insulate
him from ... a claim for pre-withdrawal litigation conduct").
The case law in our Circuit, including Hakim, suggests that a district court retains
jurisdiction over withdrawing counsel for sanctions purposes with or without an explicit order so
stating. For avoidance of doubt, however, the Court will expressly retain jurisdiction over Fraade
for these purposes, including any necessary court appearances. See Hakim , 126 F. App'x at 26
(noting that counsel's presence at the Rule 3 7 hearing could assist the district court to "allocate
responsibility" between counsel and client and "tailor sanctions accordingly").
The remaining issue, therefore, is plaintiffs' request that I order broad discovery as a
condition of withdrawal, ranging from production of all documents "relating to" Yevdayev or
Zeltser (a/k/a Zeltzer) to a deposition of Fraade covering "issues related to" the motions for
sanctions and to withdraw. As noted above, I have already denied plaintiffs' April 5, 2017 letter
motion to compel discovery, without prejudice-after plaintiffs assured me that they would prefer
a prompt decision on the pending sanctions motions based on the present discovery record. I see
little reason to revisit that determination in the context of Fraade's withdrawal motion, and even
less reason to condition his withdrawal on discovery which, if otherwise permissible, plaintiffs
will be entitled to obtain after withdrawal through the ordinary discovery mechanisms available to
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any litigant. Moreover, since Fraade has presented adequate grounds for withdrawal-and there is
no opposition- I hardly need additional discovery to decide the withdrawal motion itself.
I will, however, require Fraade to produce, as a condition of withdrawal, all emails or other
communications between Mintz Fraade and Panorama, or any person acting on Panorama's behalf,
concerning the Retainer Agreement, including the names, email addresses, and any other
identifying or contact information concerning the sender(s), receiver(s) and recipient(s) of such
communications. Such information is not itself privileged. See Local Civil Rule 26.2(a)(2)(A). To
the extent there is a good-faith claim of privilege as to other portions of these emails or other
communications, Fraade may redact them and provide an accompanying privilege log in
compliance with Local Civil Rule 26.2(a)(2)(A).
I will also require Fraade to produce, as a condition of withdrawal, the manually signed
declarations that correspond to the Zeltser (or Zeltzer) declarations that were filed in this action
bearing only the declarant's typed signature. Section 7 of this Court's Electronic Case Filing Rules
& Instructions, which governs the filing of declarations requiring "original signatures other than
that of the Filing User," requires the Filing User (in this case Fraade) to maintain the declarations
"in paper form" until "five years after all time periods for appears expire." Further, "[o]n request
of the Court, the Filing User must provide original documents for review." Id. The Court has an
independent interest, appropriately addressed in the context of a withdrawal motion, in ensuring
that counsel permitted to use its ECF system comply with the ECF rules and instructions.
CONCLUSION
The motion for leave to withdraw is GRANTED subject to the following conditions:
1. The Court will retain jurisdiction over Alan Fraade, Esq. and his firm in connection
with plaintiffs' pending sanctions motions.
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2. Fraade must produce all emails or other communications between Mintz Fraade and
Panorama, or any person acting on Panorama' s behalf, concerning the Retainer
Agreement, including the names, email addresses, and any other identifying or contact
information concerning the sender(s), receiver(s) and recipient(s) of such
communications. To the extent there is a good-faith claim of privilege as to other
portions of these emails or other communications, Fraade may redact them, and provide
an accompanying privilege log, in compliance with Local Civil Rule 26.2(a)(2)(A).
3. Fraade must produce the manually-signed Zeltser (or Zeltzer) declarations that
correspond to the declarations filed at Dkt. Nos. 125-5 (at ECF page 8), 132, and 193,
which bear only the declarant's typed name. In addition, Fraade must either:
a. Provide the originals of all Zeltser or Zeltzer declarations on file in this action
to plaintiffs for inspection and review (including those properly filed "in a
scanned format that contains an image of the actual signature," see Electronic
Case Filing Rules & Instructions § 8.4); or
b. Submit his own declaration explaining why he cannot do so.
4. Fraade must serve a copy of this Order upon Panorama.
The withdrawal will be effective when Fraade has complied with paragraphs 2, 3, and 4
above and has certified to the Court, in writing, that he has done so.
In light of the withdrawal of Panorama's current counsel, IT IS HEREBY ORDERED that
Panorama' s time to answer or otherwise respond to the Amended Complaint is EXTENDED to
June 12, 2017.
Since Panorama is not a natural person, it must defend this action through successor
counsel, who should file a notice of appearance as promptly as possible. If Panorama neither
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responds to the Amended Complaint nor obtains additional time within which to do so by June
12, 2017, plaintiffs may request a certificate of default.
The Clerk if the Court is respectfully directed to close Dkt. 208.
Dated: New York, New York May~, 2017
SO ORDERED.
~~ United States Magistrate Judge
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