1 COHEN & GRESSER LLP 800 Third Avenue, 21 Floor New York, New York 10022 REPRO … ·...

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1 NOTICE OF MOTION AND MOTION FOR LEAVE OF COURT TO WITHDRAW AS COUNSEL OF RECORD Case No. 2:13 cv 1957-TLN-CKD

Francisco A. Villegas (SBN 206997) COHEN & GRESSER LLP 800 Third Avenue, 21st Floor New York, New York 10022 Phone: (212) 957-7600 Facsimile: (212) 957-4514 Email: [email protected] Attorney for Plaintiff and Counterclaim-Defendant REPRO-MED SYSTEMS INC.

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SACRAMENTO DIVISION

REPRO-MED SYSTEMS INC. (D/B/A RMS MEDICAL PRODUCTS),

Plaintiff,

v.

EMED TECHNOLOGIES CORPORATION,

Defendant.

Case No. 2:13-cv-1957-TLN-CKD

NOTICE OF MOTION AND MOTION FOR LEAVE OF COURT TO WITHDRAW AS COUNSEL OF RECORD FOR REPRO-MED SYSTEMS, INC.

Date: May 5, 2016 Time: 2:00 p.m. Ctrm: 2 (Hon. Troy L. Nunley)

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

NOTICE IS HEREBY GIVEN that on May 5, 2016 at 2:00 p.m. or as soon thereafter

as the matter may be heard, before the Honorable Troy L. Nunley, United States District

Judge, Courtroom 2, 15th Floor, Robert T. Matsui United States Courthouse, 501 I Street,

Sacramento, California 95814, Francisco A. Villegas and Jason S. Ingerman of Cohen &

Gresser LLP (“Cohen & Gresser”) shall and hereby seek leave of this court to withdraw as

counsel for Plaintiff and Counter-defendant Repro-Med Systems, Inc. (“RMS”).

Case 2:13-cv-01957-TLN-CKD Document 85 Filed 03/25/16 of 2

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2 NOTICE OF MOTION AND MOTION FOR LEAVE OF COURT TO WITHDRAW AS COUNSEL OF RECORD Case No. 2:13 cv 1957-TLN-CKD

The motion will be made on the grounds that because of RMS’ failure to respond to

and comply with Cohen & Gresser, it has become unreasonably difficult for Cohen & Gresser

to carry out effective representation, and that RMS has not promptly paid Cohen & Gresser’s

invoices, nor made arrangements to do so.

This motion will be based on this Notice of Motion, the Memorandum of Points and

Authorities, and the Declaration of Francisco A. Villegas served and filed herewith, and on

such other oral and documentary evidence as may be presented at the hearing of the motion.

DATED: March 25, 2016

COHEN & GRESSER LLP

/s/ Francisco A. Villegas Francisco A. Villegas Attorney for Plaintiff and

Counterclaim-Defendant

Case 2:13-cv-01957-TLN-CKD Document 85 Filed 03/25/16 of 2

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1 MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:13 cv 1957-TLN-CKD




SACRAMENTO DIVISION


Plaintiff,

v.


Defendant.


MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO WITHDRAW


Case 2:13-cv-01957-TLN-CKD Document 85-1 Filed 03/25/16 Page 1 of 8

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MEMORANDUM OF POINTS AND AUTHORITIES

History of Cohen & Gresser’s Representation of RMS

As set forth in the Declaration of Francisco A. Villegas (“Villegas Decl.”), RMS

engaged Cohen & Gresser about eight months ago, in July 2015, to represent it in four

different but factually related actions in three different fora:

(i) The instant action, which had been pending since 2013, where Dechert LLP withdrew as counsel;

(ii) A later-filed action against RMS, in the Eastern District of Texas, involving a related patent; and

(iii) Two proceedings before the United States Patent Office.

Villegas Decl. ¶ 3.

Unfortunately, RMS subsequently violated its written retainer agreement with Cohen &

Gresser in two serious and fundamental ways: (i) it failed to cooperate with Cohen & Gresser

in the preparation and conduct of this matter (as well as the other matters); and (ii) it failed to

pay Cohen & Gresser’s invoices in a timely way (currently, a large sum is outstanding).

Pursuant to the retainer agreement, failure to cooperate and failure to pay promptly were

agreed-upon reasons for Cohen & Gresser to withdraw from the representation. Villegas Decl.

¶¶ 4-10.

On February 3, 2016, Cohen & Gresser gave written and oral notice to RMS of its

intention to withdraw from this case and the other cases unless communication and

cooperation were greatly improved, and unless payment arrangements were made. Villegas

Decl. ¶ 7. In taking this position, Cohen & Gresser was guided by (i) Local Rule 182(d) (Fed.

R. Civ. P. 83), “Attorneys,” which provides that lawyers practicing before this Court must

adhere to the Rules of Professional Conduct of the State Bar of California (hereinafter

“California Rules”); and (ii) Cohen & Gresser’s awareness that California Rules 3-

700(C)(1)(d) and (f) permit a lawyer to withdraw from a matter when the client’s conduct


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renders it “unreasonably difficult for the [lawyer] to carry out the employment effectively” and

when the client breaches an agreement with the lawyer as to legal fees and expenses.

On March 4, 2016, when communication and cooperation had not improved, Cohen &

Gresser gave notice to RMS that it would seek to withdraw from representing it. Villegas

Decl. ¶¶ 8-12.

RMS has now retained new counsel to represent it in all three fora, and on information

and belief will not object to Cohen & Gresser’s withdrawal. Indeed, Dentons has already

specifically requested from Cohen & Gresser all documents pertaining to all four actions,

including the instant action, so that it can prepare for substitution of counsel, and Dentons has

entered a Notice of Appearance in this action and in the Texas action. Villegas Decl. ¶¶ 16-19,

and Exhs. A and B.

A. This Court Should Permit Cohen & Gresser to Withdraw based on RMS’s Failure to Cooperate and Comply With and Failure to Pay Cohen & Gresser

The decision as to whether an attorney may withdraw is entrusted to the sound discretion

of the Court. Beard v. Shuttermart of Cal., Inc., 2008 WL 410694 at * 2 (S.D. Cal. Feb. 13,

2008); United States v. Lundstrom, 291 Fed. Appx. 76, 77 (9th Cir. 2008). In considering such

a motion, courts must weigh four factors.

(1) The reasons why withdrawal is sought; (2) the prejudice withdrawal may

cause to other litigants; (3) the harm withdrawal might cause to the

administration of justice; and (4) the degree to which withdrawal will delay the

resolution of the case.

Id. See also Stewart v. Boeing Co., 2013 WL 3168269 at * 1 (C.D. Cal. Jun. 19, 2013);

Kassab v. San Diego Police Dept., 2008 WL 251935 (S.D. Cal. Jan. 29, 2008).

Here, as to the first factor, RMS’s refusal to respond to and comply with Cohen &

Gresser in the conduct of this litigation, and its refusal to pay Cohen & Gresser’s invoices, are


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the reasons that withdrawal is sought. RMS’s failure to respond to and comply with Cohen &

Gresser’s requests was not only a violation of RMS’s agreement with Cohen & Gresser; this

failure was, in addition, a stumbling block that made it unreasonably difficult for Cohen &

Gresser to effectively represent RMS before this Court. Cf. Beard, 2008 WL 410694 at * 3

(permitting withdrawal where client’s failure to comply and communicate made it

“unreasonably difficult” for the attorneys to adequately continue representation); Canandaigua

Wine Co. v. Moldauer, 2009 WL 89141 at * 2 (E.D. Cal. Jan. 14, 2009) (permitting

withdrawal, over the client’s written objection, where it was clear that attorney and client had

“reached an impasse with respect to case strategy”). And see Hepl v. Kluge, 104 Cal. App. 2d

461 (1st Distr. Ct. of Appeal 1951) (permitting attorneys to withdraw where there was

“constant disagreement” about “the conduct of the litigation” and fees); Board of Trustees of

Sheet Metal Workers v. AAA Mechanical Construction, 2002 WL 32731427 at * 1 (N.D. Cal.

Oct, 9, 2002) (permitting attorney to withdraw where the attorney-client relationship had

“broken down to such an extent that counsel no longer can represent” the client in the case.).

Detailed information regarding the history and significance of the breakdown of the

relationship between Cohen & Gresser and RMS, and the reason that it is unreasonably

difficult for Cohen & Gresser to represent RMS, can be provided to the Court in camera. See


Similarly, RMS’s failure to pay Cohen & Gresser’s invoices was not only a violation of

RMS’s agreement with Cohen & Gresser; it was also an unfair burden for Cohen & Gresser to

have such a large outstanding non-payment. Cf. Canandaigua Wine Co., 2009 WL 89141 at

*2 (permitting withdrawal over the client’s written objection where there was an impasse over

client’s payment of outstanding legal fees); Stewart, 2013 WL 3168269 at * 2 (permitting

unpaid attorney to withdraw even though no substitute counsel had been retained, and stating,


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“The failure of a client to pay attorney’s fees provides a sufficient basis on which to grant a

request to withdraw from representation.”); Schueneman v. 1st Credit of America, LLC, 2007

WL 1969708 at *7-8 (N.D. Cal Jul. 6, 2007) (permitting unpaid attorney to withdraw because

defendant breached agreement to pay him, although no substitute counsel had been retained);

Nedbank Int’l, Ltd. v. Xero Mobile, Inc., 2008 WL 4814706 at *2 (C.D. Cal Oct. 30, 2008)

(noting that failure to pay attorney’s fees “alone can be reason enough to grant a motion to

withdraw”).

As to the second factor, there will be no prejudice to either litigant in this case. As set

forth in the Declaration of Francisco A. Villegas, RMS has already retained Dentons as

substitute counsel, and Dentons has already begun to work on relevant issues, including

communicating with EMED’s counsel regarding the issues underlying EMED’s recent motion

for injunctive relief. Dentons has already entered a Notice of Appearance for RMS in this case

as well as the Texas case, and has requested from Cohen & Gresser all documents pertaining

to all of the cases. It is therefore clear that RMS has asked Dentons to proceed swiftly to take

over from Cohen & Gresser in all fora. Villegas Decl. ¶¶ 12, 16-21, and Exhs. A and B.

Accordingly, RMS will not be without representation here. Cf. Stewart, 2013 WL

3168269 at * 2 (allowing counsel to withdraw when there was no substitute counsel where

there was “sufficient time for new counsel to be hired and familiarized with the case”).

Significantly, counsel for EMED stated that if substitute counsel appears for RMS,

EMED will have no objection to Cohen & Gresser’s withdrawal. Villegas Decl. ¶ 23.

Moreover, when Cohen & Gresser gave RMS written and oral warning that it intended to

move to withdraw from the representation, EMED did not objection – but instead retained

Dentons. Villegas Decl. ¶¶ 11-12. The parties’ statements and actions are conclusive proof


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that they themselves do not consider that they would be prejudiced by Cohen & Gresser’s

withdrawal.

Third and fourth, Cohen & Gresser’s withdrawal would cause no harm to the

administration of justice and cause no delay in this case. Cohen & Gresser does not seek to

withdraw for tactical reasons or to delay the case. To the contrary, given the poor relationship

between RMS and Cohen & Gresser over several months, Cohen & Gresser’s withdrawal

could only have a beneficial effect and might lead to an efficient resolution in this Court.

Villegas Decl. at ¶¶ 20-22.

Specifically, this case has been pending for close to three years, and Cohen & Gresser

has been involved in the case for about eight months. Over those eight months, Cohen &

Gresser and RMS have not communicated well, and Cohen & Gresser believes that it lacks the

information and compliance it needs to effectively represent RMS. For instance, with respect

to the motion for injunctive relief recently filed by EMED, Cohen & Gresser was not even

aware of the alleged recent FDA regulatory action referenced in the motion. Nor have Cohen

& Gresser and RMS discussed this matter, though such discussion would be necessary for

Cohen & Gresser to effectively represent RMS’s interests. Cf. Hershey v. Berkeley, 2008 WL

4723610 at * 2 (C.D. Cal. Oct. 24, 2008) (permitting counsel to withdraw where client’s “non-

responsiveness has rendered it nearly impossible” for counsel to prosecute the action).

Accordingly, Cohen & Gresser’s continued presence in the case, while having

extremely poor communications with and cooperation from the plaintiff, could only harm

efficiency and cause additional delays. See Villegas Decl. ¶ 9, 14-15, 21.

On the opposite side of the ledger, Cohen & Gresser would be materially harmed if

forced to remain in the case, while being unpaid by RMS and hampered by an unreasonably

difficult situation. It is beyond dispute that RMS has violated its retainer agreement with


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Cohen & Gresser by failing to cooperate and comply, and failing to pay Cohen & Gresser’s

invoices. Moreover, RMS has not made arrangements for payments, though it owes Cohen &

Gresser a large amount of money. Cohen & Gresser has represented RMS for eight months, in

three different fora. For most of this work, Cohen & Gresser has not been compensated.


To conclude, given the breakdown in the relationship between Cohen & Gresser and

RMS, RMS’s failure to cooperate and comply with Cohen & Gresser, and RMS’s failure to

pay Cohen & Gresser, this Court should allow Cohen & Gresser to withdraw from the

representation. Substitute counsel is waiting in the wings. Thus, the facts weigh heavily in

favor of permitting Cohen & Gresser to withdraw.

WHEREFORE, for all of the reasons stated herein and in the Villegas Declaration,

Cohen & Gresser respectfully requests the Court’s permission to withdraw as counsel for

RMS, and for such other and further relief to which it may justly be entitled.

Dated: March 25, 2016

/s/ Francisco A. Villegas Francisco A. Villegas SBN 206997 (California) COHEN & GRESSER LLP 800 Third Avenue New York, New York 10022 (212) 957-7600 [email protected] Attorney for RMS Plaintiff and Counterclaim-Defendant


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CERTIFICATE OF SERVICE I hereby certify that on March 25, 2016, I electronically transmitted the attached

document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a

Notice of Electronic Filing to the CM/ECF registrants for this case.

/s/ Francisco A. Villegas Francisco A. Villegas


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1 DECLARATION OF FRANCISCO A. VILLEGAS, ESQ. IN SUPPORT OF MOTION TO WITHDRAW Case No. 2:13 cv 1957-TLN-CKD




SACRAMENTO DIVISION


Plaintiff,

v.


Defendant.


DECLARATION OF FRANCISCO A. VILLEGAS, ESQ. IN SUPPORT OF MOTION TO WITHDRAW



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I, Francisco A. Villegas, declare as follows:

1. I am an attorney at the firm of Cohen & Gresser LLP (“Cohen & Gresser”),

which represents the plaintiff in this action, Repro-Med Systems, Inc. (“RMS”).

2. I make this Declaration in support of Cohen & Gresser’s motion to withdraw as

counsel for RMS based on my own personal knowledge or, where specified, on information

and belief based on documents and statements that I believe to be true and accurate.

History of Cohen & Gresser’s Representation of RMS

3. On or about July 14, 2015, RMS retained Cohen & Gresser to represent it in

four actions, in three different fora:

(i) The instant lawsuit filed by RMS on or about September 20, 2013, where RMS had previously been represented by Dechert LLP;

(ii) A lawsuit involving a closely related patent, brought against RMS by EMED Technologies Corporation (“EMED”), on or about June 25, 2015. EMED Technologies Corp. v. Repro-Med Systems, Inc., Civ. Action No. 2:15-cv-01167-JRG-RSP; and

(iii) An Ex Parte Reexamination and an Inter Partes Review filed on behalf of RMS in the United States Patent Office on or about September 15 and September 17, 2015, respectively.

4. In retaining Cohen & Gresser, RMS agreed to cooperate with Cohen & Gresser

in the preparation and conduct of the representation and to pay Cohen & Gresser’s invoices in

a timely way. Failure to cooperate and failure to pay promptly were agreed-upon reasons for

Cohen & Gresser to withdraw from the representation.

5. Within months after substituting for Dechert in the instant litigation, it became

apparent to Cohen & Gresser that it could not effectively and professionally represent RMS

unless the attorney-client relationship was greatly improved.

6. Accordingly, about six months after being retained, Cohen & Gresser gave

notice to RMS of its intention to withdraw as counsel in all three fora if the attorney-client


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relationship could not be significantly improved. In taking this position, Cohen & Gresser was

guided by: (i) Local Rule 182(d) (Fed. R. Civ. P. 83), “Attorneys,” which provides that

lawyers practicing before this Court must adhere to the Rules of Professional Conduct of the

State Bar of California (hereinafter “California Rules”); and (ii) Cohen & Gresser’s awareness

that California Rules 3-700(C)(1)(d) and (f) permit a lawyer to withdraw from a matter when

the client’s conduct renders it “unreasonably difficult for the [lawyer] to carry out the

employment effectively” and when the client breaches an agreement with the lawyer as to

legal fees and expenses.

7. In a writing dated February 3, 2016, and on a telephone conference of the same

date, Cohen & Gresser advised RMS of two conditions that RMS would need to meet if Cohen

& Gresser were to be able to carry out its ethical obligations to RMS and to this Court.

(i) RMS would need to become more responsive to and compliant with Cohen & Gresser’s requests and advice; and

(ii) RMS would need to pay invoices as they came due, and set forth a payment schedule for outstanding invoices.

8. Unfortunately, over the ensuing weeks, RMS’s responsiveness and compliance

did not improve.

9. In the instant lawsuit, poor attorney-client communication and lack of

compliance have impaired Cohen & Gresser’s ability to function properly and have caused

Cohen & Gresser unreasonable difficulty. I will not set forth here the specifics of RMS’s lack

of responsiveness and compliance in light of California Rules 3-100, which governs an

attorney’s obligation to avoid disclosure of confidential information. At the Court’s request, I

will amplify and explain my statements and respond to any questions the Court may have

regarding the situation, in camera.


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10. Further, although a payment was made after the February 3, 2016 notice, over

half of the money owed to Cohen & Gresser by RMS, a very considerable amount, is still

outstanding. RMS has not indicated that it intends to pay this amount. Nor, despite our

urging, has RMS supplied a requested a schedule for payment.

11. Accordingly, on March 4, 2016, Cohen & Gresser advised Cyril N. Narishkin,

the Interim Chief Operating Officer of RMS, who was our designated point of contact, that the

conditions for continued representation set forth on February 3, 2016 had not been met, and

that Cohen & Gresser believed it necessary to withdraw from representing RMS.

12. Mr. Narishkin responded that RMS would retain new counsel.

13. Subsequently, pursuant to L.R. 182(d), on March 25, 2016, I telephoned

Andrew Sealfon, the President of RMS, in order to inform him that this motion would be

made. I also mailed and emailed a copy of the instant motion papers to Mr. Narishkin at 24

Carpenter Road, Chester, NY 10918, the address of RMS; and to

[email protected].

Withdrawal Will Not Have An Injurious Effect in this Litigation

14. I believe that Cohen & Gresser’s withdrawal will not have an injurious effect

on RMS or on EMED, and will not delay the progress of this case, for three reasons.

15. First, now and for several months, Cohen & Gresser is not in a position to

represent RMS’s interests.

16. Second, RMS advised Cohen & Gresser that it has retained substitute counsel to

act for it in all three fora.

17. Subsequently, On March 24, 2016, R. Tyler Goodwyn IV, an attorney at

Dentons US LLP (“Dentons”), contacted me and requested that I send him all litigation files


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and other materials relevant to all cases, in anticipation of Dentons’ substituting in as counsel

(a request I am in the process of complying with). Mr. Goodwyn specifically asked for the

documents pertaining to the instant case.

18. Later I learned that on March 25, 2016, Dentons US LL (“Dentons”) entered a

Notice of Appearance in both this action and the Texas action. See Exhibit A and B annexed

hereto, are true and correct copies of Notices of Appearance of Counsel dated March 25, 2016.

19. Based on all of the above, I believe that RMS will not object to Cohen &

Gresser’s withdrawal from this case.

20. Third, just yesterday, March 24, 2016, EMED moved for injunctive relief in

this Court, based on FDA correspondence and alleged recent FDA regulatory actions.

21. Cohen & Gresser has not advised RMS regarding the issues discussed in

EMED’s motion, and is not familiar with any such regulatory actions or issues. However, on

information and belief based on correspondence forwarded to me by John B. Thomas, counsel

for EMED, Dentons has already been in contact with EMED’s attorneys regarding the issues

underlying EMED’s motion.

22. Accordingly, there will be no inefficiency or delay for Dentons, rather than

Cohen & Gresser, to respond to EMED’s motion. To the contrary, it would cause delay as

well as unfairness for Cohen & Gresser to attempt to proceed.

23. Significantly, when informed by telephone on March 25, 2016 of Cohen &

Gresser’s intention to move to withdraw from representing RMS, John B. Thomas, counsel for

EMED, stated that his client would not oppose the motion if new counsel simultaneously

appeared for RMS.


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24. Cohen & Gresser has already filed to withdraw as RMS’s counsel in the

pending inter partes Patent Office proceeding; and a motion to withdraw as counsel will

shortly be made in the Eastern District of Texas case as well.

25. Accordingly, on behalf of Cohen & Gresser, I respectfully request leave of this

Court to withdraw as counsel for RMS in this action.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on: March 25th, 2016 New York, New York

/s/ Francisco A. Villegas

Francisco A. Villegas

Attorney for RMS Plaintiff and Counterclaim-Defendant


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1 [PROPOSED] ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL OF RECORD FOR REPRO-MED SYSTEMS, INC. Case No. 2:13 cv 1957-TLN-CKD




SACRAMENTO DIVISION


Plaintiff,

v.


Defendant.


[PROPOSED] ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL OF RECORD FOR REPRO-MED SYSTEMS, INC.



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2 [PROPOSED] ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL OF RECORD FOR REPRO-MED SYSTEMS, INC. Case No. 2:13 cv 1957-TLN-CKD

Before the Court is Francisco A. Villegas and Jason S. Ingerman of Cohen & Gresser,

LLP (“Cohen & Gresser”) on a motion to withdraw as counsel for Repro-Med Systems, Inc.

(“RMS”). After considering the motion, the motion is GRANTED. It is therefore ordered that

Cohen & Gresser may withdraw as counsel for RMS in this case.

IT IS SO ORDERED.

Dated: ______________________ _________________________________ Honorable Troy L. Nunley United States District Court Judge


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1 PROOF OF SERVICE BY MAIL Case No. 2:13 cv 1957-TLN-CKD




SACRAMENTO DIVISION


Plaintiff,

v.


Defendant.


PROOF OF SERVICE BY MAIL



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2 PROOF OF SERVICE BY MAIL Case No. 2:13 cv 1957-TLN-CKD

I, Francisco A. Villegas, declare:

I am over the age of eighteen years, and not a party to the within action. My business

address is Cohen & Gresser LLP, 800 Third Avenue, New York, NY 10022. On March 25,

2016, I served the within documents:

1. FRANCISCO A. VILLEGAS’S NOTICE OF MOTION AND MOTION FOR

LEAVE OF COURT TO WITHDRAW AS COUNSEL OF RECORD FOR REPRO-MED

SYSTEMS INC., MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT

THEREOF;

2. DECLARATION OF FRANCISCO A. VILLEGAS, ESQ. IN SUPPORT OF

MOTION TO WITHDRAW AS COUNSEL OF RECORD FOR REPRO-MED SYSTEMS

INC.

3. [PROPOSED] ORDER GRANTING MOTION TO WITHDRAW AS

COUNSEL OF RECORD FOR REPRO-MED SYSTEMS INC.

by the below identified means of service:

R. Tyler Goodwyn Dentons 1900 K Street NW Washington, District of Columbia 20006 U.S. Mail

Mr. Cyril H. Narishkin Repro-Med Systems, Inc. 24 Carpenter Road Chester, NY 10918 U.S. Mail

I declare under penalty of perjury of the laws of the United States of America that the

foregoing is true and correct. Date: March 25, 2016 Francisco A. Villegas Francisco A. Villegas


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