United States District Court, M.D. Tennessee, Columbia Division
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
this Court's best efforts to resolve the matter once and
for all, the seemingly endless saga of the $100, 000
Promissory Note continues.
February 20, 2018, this Court entered an Order that, in
pertinent part, reads:
The unopposed Motion for Entry of Order of Voluntary
Dismissal of Cause of Action for Unjust Enrichment in Second
Amended Counterclaim (Doc. No. 194) filed by Jennifer
Rogers-Etcheverry is hereby GRANTED, and that claim is hereby
DISMISSED WITH PREJUDICE.
With that ruling, and in light of this Court's November
2, 2017 Order (Doc. No. 178) granting summary judgment on
Rogers-Etcheverry's breach of contract claim and request
for an equitable lien as set forth in Counts I and III of the
Counterclaim, the Clerk of the Court SHALL ENTER JUDGMENT in
favor of Jennifer Rogers-Etcheverry and against Patricia
Finally, and as stated in this Court's prior Order, a
ruling on Rogers-Etcheverry's request for reasonable
attorney's fees, costs and expenses is DEFERRED until the
time for filing an appeal has run or, if an appeal is taken,
the mandate has issued, at which time the matter will be
referred to the Magistrate Judge for a Report and
(Doc. No. 196 at 1-2). In accordance with that Order, the
Clerk of the Court entered a final judgment on February 22,
2018, that reads:
Pursuant to and as stated in the Order of the Court (Docket
Entry No. 196), JUDGMENT IS HEREBY ENTERED in favor of
Jennifer Rogers-Etcheverry and against Patricia Porter
Kryder, for purposes of Rule 58(a) and/or Rule 79(a) of the
Federal Rules of Civil Procedure.
(Doc. No. 197 at 1). That same day, Kryder's lawyer, John
A. Beam, III of Equitas Alliance, PLLC, filed a Motion to
Withdraw (Doc. No. 198) as Kryder's counsel of record.
being the beneficiary of the Court's ruling,
Rogers-Etcheverry filed a Motion to Alter or Amend (Doc. No.
200). Thereafter, motions for extensions of time to respond
were filed by counsel (Doc. No. 203), and by Kryder acting
pro se (Doc. No. 203).
March 21, 2008, new counsel entered notices of appearance on
behalf of Kryder (Doc. Nos. 204-207). Two days later, and
before any of the pending Motions had been ruled on, Kryder
filed a Notice of Appeal (Doc. No. 208). Because the Notice
of Appeal was premature, the Sixth Circuit issued a Notice
(Doc. No. 210) on March 28, 2018 holding the appeal in
abeyance until after this Court's ruling on the pending
Motion to Alter or Amend.
of this Memorandum Opinion, the Court addresses that Motion.
First, however, the Court turns to the Motion to Withdraw
because it is an ancillary motion, and remains within the
jurisdiction of this Court, notwithstanding the filing of the
Notice of Appeal. See Fort Gratiot Sanitary
Landfill, Inc. v. Mich. Dep't of Nat. Res., 71 F.3d
1197, 1203 (6th Cir. 1995) (noting that it is “settled
law that filing a notice of appeal with the district court
divests the district court of jurisdiction to act in a case,
except on remedial matters unrelated to the merits of the
appeal”); United States v. Williams, No.
05-3293, 2006 WL 3203748, at *6 (6th Cir. Nov. 6, 2006)
Motion to Withdraw
on behalf of himself and his law firm, moves to withdraw his
representation of Kryder on the ground that she has sued him
in state court for legal malpractice in relation to this
case. Although Local Rule 83.01 requires fourteen days notice
to the client prior to filing such a Motion, Beam requests
that he be excused from that requirement, and indicates that
he duly notified Kryder of his intent to withdraw at the time
he filed his Motion. In response, Rogers-Etcheverry claims
that she intends to file a Rule 11 Motion against Beam and
other counsel who represented Kryder in this action, and
therefore requests that, should withdrawal be allowed, the
Court retain jurisdiction over Kryder's former lawyer for
purposes of any Rule 11 Motion.
lawyer may not “escape [Rule 11] sanctions for
misconduct simply by withdrawing from a case before opposing
counsel applies for sanctions.” In re Itel Sec.
Litig., 791 F.2d 672, 675 (9th Cir. 1986); Logicom
Inclusive, Inc. v. W.P. Stewart & Co., No.
04CIV604(CSHDFE), 2008 WL 1777855, at *2 (S.D.N.Y. Apr. 16,
2008) (stating that “withdrawal from the case does not
insulate” counsel from Rule 11 sanctions “for
pre-withdrawal litigation conduct”). This is because
“[t]he signing requirement in Rule 11 makes clear that
any attorney who, at any time, certified to the court that a
pleading complies with Rule 11 is subject to the rule, even
if the attorney later withdraws from the case.”
Holgate v. Baldwin, 425 F.3d 671, 677 (9th Cir.
Beam has been sued by his client, the Court will excuse
compliance with Local Rule 83.01, and the Motion to Withdraw
will be granted. This ruling, however, does not absolve
counsel of responsibility for any Rule 11 Motion filed by
Rogers-Etcheverry, and the ...