Free Motion to Withdraw as Attorney - District Court of Delaware - Delaware

Case 1:07-cv-00013-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DIANE RECZEK, Plaintiff, v. TILTON TERRACE OF DELAWARE, L.L.C. d/b/a TILTON TERRACE; and, JHA WILMINGTON, INC., Defendants. ) ) ) ) ) ) ) ) ) ) )

C.A. No. 07-00013-GMS

MOTION TO WITHDRAW AS COUNSEL COMES NOW, Cross & Simon, LLC ("C&S"), who moves the Court for an Order authorizing it to withdraw as counsel for Defendant JHA Wilmington, Inc. (the "Defendant") in the above-captioned civil action. In support thereof, movant states: 1. Defendant has failed to pay costs and fees incurred by C&S in accordance

with the retention agreement entered into with C&S. 2. C&S has performed substantial work to date in investigating the facts of

the case and responding to the Complaint, but has been paid only for a portion of that time and expense. 3. C&S has given several warnings to Defendant that C&S would move to

withdraw as counsel if Defendant failed to satisfy its contractual obligations to C&S. 4. Defendant has advised C&S that it does not have sufficient funds to pay

for C&S' services going forward. C&S will suffer an unreasonable financial burden if forced to continue representing Defendant in this action.

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5.

In addition, the Defendant has failed to respond to several letters and

phone calls and is not providing C&S with the information and support necessary to defend this litigation and to meet C&S' obligations to the Court and opposing counsel. 6. Pursuant to Delaware Professional Conduct Rule 1.16(b)(5), withdrawing

is appropriate when 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." In addition, withdrawing is appropriate if "the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client." Rule 1.16(b)(6). Withdrawal also is appropriate where "good cause" exists. 7. For the reasons set forth above, termination of representation is

appropriate in this case under the applicable Professional Conduct Rules. 8. Notice of this motion is being provided to all parties in this case. Notice is

being provided to Defendant via certified mail and also by facsimile. 9. Plaintiff's counsel has advised that Plaintiff does not oppose this motion

as long as the Court provides a limited time frame for Defendant to obtain new counsel. WHEREFORE, Cross & Simon, LLC requests the Court enter an Order permitting it to withdraw as counsel in the above-referenced matter.

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CROSS & SIMON, LLC

By: /s/ Erica N. Finnegan . Erica N. Finnegan (No. 3986) 913 North Market Street, 11th Floor Wilmington, Delaware 19899-1380 302-777-4200 302-777-4224 (facsimile) Counsel for JHA Wilmington, Inc. d/b/a Tilton Terrace Dated: May 21, 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DIANE RECZEK, Plaintiff, v. TILTON TERRACE OF DELAWARE, L.L.C. d/b/a TILTON TERRACE; and, JHA WILMINGTON, INC., Defendants. ) ) ) ) ) ) ) ) ) ) )

C.A. No. 07-00013-GMS

STATEMENT PURSUANT TO LOCAL RULE 7.1.1 Counsel hereby certifies that the content of its Motion to Withdraw as Counsel (the "Motion") was discussed with Plaintiff's counsel and Plaintiff's counsel has advised that Plaintiff does not oppose this motion as long as the Court provides a limited time frame for Defendant to obtain new counsel.

CROSS & SIMON, LLC

By: /s/ Erica N. Finnegan . Erica N. Finnegan (No. 3986) 913 North Market Street, 11th Floor Wilmington, Delaware 19899-1380 302-777-4200 302-777-4224 (facsimile) Counsel for JHA Wilmington, Inc. d/b/a Tilton Terrace Dated: May 21, 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

DIANE RECZEK, Plaintiff, v. TILTON TERRACE OF DELAWARE, L.L.C. d/b/a TILTON TERRACE; and, JHA WILMINGTON, INC., Defendants.

) ) ) ) ) ) ) ) ) ) )

C.A. No. 07-00013-GMS

ORDER PERMITTING WITHDRAWAL OF DEFENSE COUNSEL The Court having considered the Motion to Withdraw as Counsel to Defendant filed by Cross & Simon, LLC. and the Court having determined that good and adequate cause exists for granting the Motion; IT IS HEREBY ORDERED that the Motion is granted and Cross & Simon, LLC is permitted leave to withdraw as counsel for Defendant JHA Wilmington, Inc. in this action; and IT IS FURTHER ORDERED that Defendant JHA Wilmington, Inc. shall cause new counsel to appear on its behalf on or before June 15, 2007. Failure to cause new counsel to enter an appearance by that date may result in the Court entering judgment against JHA Wilmington, Inc. in favor of Plaintiff.

Dated:

, 2007 Judge Gregory M. Sleet

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CERTIFICATE OF SERVICE I, Erica N. Finnegan, certify this 21st day of May, 2007, that I caused the attached Motion to Withdraw as Counsel to be electronically filed with the Clerk of the Court using CM/ECF which will send notification of such filing(s) to counsel of record. I further certify that a copy of the foregoing documents were served on the following counsel and parties in the manner indicated: By Hand Delivery G. Kevin Fasic, Esquire Law Offices of G. Kevin Fasic. LLC 1225 King Street, Suite 200 Wilmington, DE 19801 By Facsimile (215-546-7440) Kevin I. Lovitz, Esquire The Lovitz Law Firm, P.C. 1528 Walnut Street, Suite 1401 Philadelphia, PA 19102

By Certified U.S. Mail and by Facsimile (517-796-8767) JHA Wilmington, Inc. c/o Red Oak Healthcare Management 2800 Wildwood Ave. Jackson, MI 49202 Attn: John G. Hupp, President & CEO

/s/ Erica N. Finnegan Erica N. Finnegan (DE No. 3986) Cross & Simon, LLC 913 North Market Street, 11th Floor Wilmington, Delaware 19801 302-777-4200 (phone) 302-777-4224 (facsimile) [email protected] Counsel for JHA Wilmington, Inc. d/b/a Tilton Terrace