Yellow Bird-Chase v. United States of America, The

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Lissa Yellow Bird-Chase, 	)
)
Plaintiff, 	) 	ORDER GRANTING MOTION TO
) 	WITHDRAW AND TO EXTEND
vs. 	) 	PRETRIAL DEADLINES
)
United States of America, 	) 	Case No. 1:22-cv-156
)
Defendant. 	)
Before the court are a motion to withdraw and a motion to extend all pretrial deadlines filed
by Plaintiff’s counsel on April 20, 2023. For the reasons that follow, the motions are granted.
I. 	BACKGROUND
Plaintiff initiated this action by Complaint on September 28, 2022, claiming, among other
things, that she was assaulted and otherwise mistreated while in Bureau of Indian Affairs custody
at the Standing Rock Detention Center and deprived of her personal property upon her release.
(Doc. No. 1).
On April 20, 2023, Plaintiff’s counsel filed motions to withdraw and to extend all pretrial
deadlines by sixty days. 	(Doc. Nos. 23 and 26). 	They seek leave to withdraw in light of
information they recently acquired through discovery, privileged information they acquired during
their review of this discovery, and a recent breakdown in attorney-client communications. They
also seek an extension of the pretrial deadlines so that Plaintiff will have time to find new counsel.
On May 4, 2023, the United States filed a response in opposition to the motions filed by
Plaintiffs’ counsel. 	(Doc. No. 30). 	It asserts that Plaintiffs’ counsel has not made the requisite
showing of good cause to warrant either their withdrawal or an extension of the pretrial deadlines.
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On May 9, 2023, Plaintiff’s counsel filed a reply in support of their motions. (Doc. No.
33).
On May 22, 2023, the Court held a mid-discovery status conference during which it had a
discussion about the pending motions with Plaintiff’s counsel and the United States. (Doc. No.
34).
II. 	DISCUSSION
This district’s local rules provide the following in relevant part with respect to attorney
withdrawals when there is no ready substitute:
An attorney who has appeared as attorney of record in a case and is seeking to
withdraw from the case must serve and file a motion to withdraw, establishing good
cause for withdrawing. 	The attorney seeking to withdraw must also serve his or
her client with the motion. The attorney seeking to withdraw is not relieved of his
or her duties to the court, the client, or to an opposing attorney until the court has
granted the motion to withdraw.
D.N.D. Gen. L.R. 1.3(F).
Plaintiff’s 	counsel 	maintains 	that 	it 	has 	good 	cause 	to 	withdraw 	as 	“continued
representation has been rendered unreasonably difficult, may require action [they have] a
fundamental disagreement with, and may result in a violation of the rules of professional conduct”
given what they have gleaned from recent discovery provided by the United States. They rely in
part on North Dakota Rules of Professional Conduct 1.16 and 3.1. 	Rule 1.16 provides that a
“lawyer shall not represent a client or, where representation has commenced, shall seek to
withdraw from the representation of a client if . . . 	the lawyer reasonably believes that the
representation will result in violation of these Rules or other law.” 	North Dakota Rule of
Professional Conduct 1.16(a) (emphasis added). It further provides that a “a lawyer may withdraw
from representing a client if . . . a client insists upon pursuing objectives or means . . . with which
the lawyer has a fundamental disagreement . . . [,] the representation has been rendered
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unreasonably difficult by the client . . . [,] or . . . other good cause for withdrawal exists.” North
Dakota Rule of Professional Conduct 1.16(b) (emphasis added). 	Rule 3.1 provides that a “lawyer
shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a
basis in law and fact for doing so that is not frivolous.” North Dakota Rule of Professional Conduct
3.1 (emphasis added).
In response, the United States makes the following assertions. 	First, it has produced
surveillance videos and other evidence that contradicts most if not all of the allegations made by
Plaintiff in her Complaint and, having now reviewed this evidence, Plaintiff’s counsel wants out.
Second, while Plaintiff’s counsel has admittedly articulated a basis for permissive withdrawal,
they have not demonstrated an entitlement to mandatory withdrawal as they have only asserted
that their continued representation of Plaintiff may violate the rules or professional conduct or
other law. 	Third, Plaintiff’s counsel have not made the requisite showing of good cause under
Fed. R. Civ. P. 16(b)(4) to warrant an extension of all pretrial deadlines and that Plaintiff should
not be given the benefit of an extension without any requirement that she take action to advance
her case in the interim. Finally, if Plaintiff’s counsel is authorized to withdraw, they should first
be required to “present a plan for moving the case forward, including a plan for whether [Plaintiff]
intends to pursue this case, a plan for whether [Plaintiff] will retain new counsel, and a plan for
filing an amended complaint.” (Doc. No. 30).
In reply, Plaintiff’s counsel asserts that their presentation of a plan as requested by the
United States is a nonstarter and that their withdrawal is required given their present lack of
communication with Plaintiff, the rules of professional conduct, and their obligations under Fed.
R. Civ. P. 11(b). Rule 11(b) provides:
By presenting to the court a pleading, written motion, or other paper--whether by
signing, filing, submitting, or later advocating it--an attorney or unrepresented party
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certifies that to the best of the person's knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law
or by a nonfrivolous argument for extending, modifying, or reversing existing law
or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified,
will likely have evidentiary support after a reasonable opportunity for further
investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of information.
Fed. R. Civ. P. 11(b).
“What constitutes ‘good cause’ for the withdrawal of counsel, without substitution, cannot
be readily defined, or categorized, but must be evaluated on a case-by-case basis, and determined
by examining the reasons proffered for the asserted need to withdraw.” AB Tours LLC, Plaintiff,
v. ABC Bus Leasing, Inc., Defendant., No. CV 21-1376 (ECT/BRT), 2021 WL 10395829, at *1
(D. Minn. Dec. 13, 2021). “Courts typically evaluate the impact of the withdrawal on the parties’
interests and the progress of the action.” Id.
The court is mindful of the United States’ concern that this action will stagnate should
Plaintiff’s counsel be allowed to withdraw without a plan or substitute counsel in place. The court
also appreciates the difficult situation in which Plaintiff’s counsel find themselves. 	Plaintiff’s
counsel have a noncommunicative and apparently unreceptive client to whom they owe a duty.
They are endeavoring to balance this duty with their ethical obligations and obligations as officers
of the court.
Based upon the information provided by Plaintiff’s counsel, the court shall permit them to
withdraw. First, Plaintiff has been served by Plaintiffs’ counsel with a copy of their motion to
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withdraw and has not voiced any objection to it. 	Second, Plaintiff’s counsels’ inability to
adequately communicate with Plaintiff prevents them from taking any meaningful action on behalf
of Plaintiff going forward. 	This lack of communication coupled with the Plaintiff’s counsels’
ethical and Rule 11 concerns constitutes, in the court’s view, good cause under Local Rule 1.5(F)
and Fed. R. Civ. P. 16(b)(4) to withdraw and extend the pretrial deadlines. It seems doubtful that
the United States would find any plan acceptable that does not include a reevaluation and voluntary
dismissal of some or all of Plaintiff’s claims. However, as Plaintiffs’ counsel have pointed out,
they 	cannot 	take 	any 	action 	without 	Plaintiff’s 	consent 	and 	Plaintiff 	is 	not 	presently
communicating with them.
Allowing Plaintiffs’ counsel to withdraw and extending the pretrial deadlines may create
some inconvenience in the short term for the United States. However, it will not unduly prejudice
the United States as the United States has extensive experience dealing with self-represented
litigants and can file a dispostive motion prior to any deadline that the court may set and regardless
of whether Plaintiff has counsel or is self-represented.
III. 	CONCLUSION
The court GRANTS Plaintiffs’ counsel’s motions to withdraw and extend all pretrial
deadlines (Doc. Nos. 23 and 26). The pretrial deadlines shall be amended as follows:
(1) Motions to join additional parties and to amend the pleadings are due by July 7, 2023.
(2) All fact discovery will be completed by September 13, 2023, with all discovery
pursuant to Rules 33, 34, and 36 to be served a minimum of thirty-three (33) days
before the deadline.
(3) Discovery motions are due by September 29, 2023.
(4) The deadlines for exchanging complete expert witness reports are as follows:
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a. 	Plaintiff – October 13, 2023;
b. 	Defendant – November 28, 2023; and
c. 	Rebuttal – December 29, 2023.
(5) The parties shall have until February 20, 2024, to complete discovery depositions of
expert witnesses.
(6) Nondispositive motions are due by September 19, 2023.
(7) Dispositive motions are due by March 12, 2024.
The Clerk’s office shall send a copy of this order to Plaintiff at the address provided by Plaintiffs’
counsel. Plaintiff shall file a status report with the court by June 19, 2023, advising what efforts
she is undertaking to obtain substitute counsel or whether she intends to represent herself in this
matter. Plaintiff should take heed that a self-represented litigant is not excused from complying
with Court orders or substantive and procedural law “even without affirmative notice of the
application of the rules to [her] case.” Bennett v. Dr. Pepper/Seven Up, Inc., 295 F.3d 805, 808
(8th Cir. 2002).
IT IS SO ORDERED.
Dated this 23rd day of May, 2023.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
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