United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON UNITED STATES DISTRICT JUDGE.
matter is before the Court on attorney James G. Nowogrocki
and the law firm of Heyl, Royster, Voelker & Allen,
P.C.'s Second Supplemental Motion to Withdraw as Counsel
for Defendants and for Stay, filed July 23, 2019. (ECF No.
filed their original Complaint in this matter on October 30,
2018. After Plaintiffs filed their First Amended Complaint
and served Defendants, attorney James G. Nowogrocki and the
law firm of Heyl, Royster, Voelker & Allen, P.C.
(collectively “Heyl, Royster”), entered their
appearance on behalf of all Defendants on January 9, 2019.
Defendants filed a Partial Motion to Dismiss and/or for More
Definite Statement on February 11, 2019, which the Court
granted in part on March 25, 2019.
filed their Second Amended Complaint in this matter on April
5, 2019, in an effort to collect fringe benefit contributions
allegedly due and owing from Defendants pursuant to
§§ 502 and 515 of the Employee Retirement Income
Security Act of 1974, 29 U.S.C. §§ 1132 and 1145,
and Section 301 of the Labor Management Relations Act of 1947
(“LMRA”), 29 U.S.C. § 185. Plaintiffs
further seek to confirm an arbitration award and enforce the
collective bargaining agreement pursuant to the Missouri
Uniform Arbitration Act and Section 301 of the LMRA.
Defendants filed their answer to the Second Amended Complaint
on April 18, 2019.
11, 2019, Heyl, Royster filed its original Notice of
Withdrawal as Attorney for Defendants. Heyl, Royster
supplemented its notice on June 13, 2019, explaining that
despite having entered into a client engagement agreement
that specifically provided legal representation may be
terminated should the clients fail to pay Heyl, Royster's
bill within thirty days of issuance, Defendants have not made
any payments on multiple invoices for legal services dating
back to February 27, 2019. Heyl, Royster maintained they
contacted Defendants on or about May 18, 2019, seeking
payment of the delinquent invoices, but no payments were
made, nor did Defendants express any opposition to the filing
of a motion to withdraw on the part of Heyl, Royster. The
Court held Heyl, Royster's motion in abeyance, and
entered a Case Management Order on June 25, 2019, setting
this matter for trial on July 6, 2020.
noted above, Heyl, Royster filed their Second Supplemental
Motion to Withdraw as Counsel for Defendants and for Stay on
July 23, 2019, stating Defendants remain in breach as to a
material term of the attorney-client engagement letter. Heyl,
Royster asks that this Court order a 45-day notice of
withdrawal period, allowing Defendants to find substitute
counsel within that time frame or risk having a default
judgment entered against them.
this Court will not allow counsel to withdraw from
representation unless substitute counsel enters an appearance
for the client. This rule is especially significant in cases
where the client is a corporation, as a corporation is an
artificial entity that can only act through agents, cannot
appear pro se, and must be represented by counsel.
Rowland v. California Men's Colony, Unit II Men's
Advisory Council, 506 U.S. 194, 201-02 (1993).
of a default judgment is appropriate where a defendant
corporation fails to comply with a court order to obtain
counsel.'” United Fire & Cas. Co. v. Titan
Contractors Serv., Inc., No. 4:10-CV-2076 CAS, 2014 WL
3805493, at *1 (E.D. Mo. Aug. 1, 2014) (quoting R.
Maganlal & Co. v. M.G. Chem. Co., Inc., No. 88 CIV.
4896 MJL THK, 1996 WL 715526, at *2 (S.D. N.Y. Dec. 12,
1996); see Top Sales, Inc. v. Designer Vans, Inc.,
No. CIV.A. 3:96-CV-0721, 1997 WL 786254, at *2 (N.D. Tex.
Dec. 11, 1997) (court grants counsel's motion to withdraw
and orders defendant corporation to retain substitute counsel
or risk having its pleadings stricken and default judgment
entered against it)).
light of the foregoing, the Court will hold in abeyance Heyl,
Royster's motions for leave to withdraw as counsel, and
order Defendants to obtain substitute counsel no later than
September 9, 2019. If Defendants Taylor Roofing Solutions,
Inc., Taylor Roofing Solutions, Inc., d/b/a Capitol Roofing
Solutions, Capitol Roofing Solutions, L.L.C., and Beltran
Contractors, LLC, fail to obtain substitute counsel within
that time, they may be subject to a default judgment in favor
of Plaintiffs. See Forsythe v. Hales, 255 F.3d 487,
490-91 (8th Cir. 2001) (failure to engage in
discovery and hire counsel admitted to practice before the
district court for a period of twenty-five months provided
ample basis for a grant of default judgment); Ackra
Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852,
856-57 (8th Cir. 1996) (corporate defendant was
technically in default on date court allowed counsel to
withdraw because a corporation cannot proceed pro
se). If Defendant Gerrit Yank fails to obtain substitute
counsel within the time allowed, he may be required to
proceed to trial pro se, that is, without the
assistance of counsel. Heyl, Royster's motion to withdraw
from representation of Defendants will be granted when
substitute counsel enters an appearance, or on September 10,
2019, whichever comes first.
IT IS HEREBY ORDERED that Heyl,
Royster's Supplemental Motion to Withdraw as Attorney for
Defendants and Second Supplemental Motion to Withdraw as
Counsel for Defendants and for Stay (ECF Nos. 27, 32) are
HELD IN ABEYANCE, and the Court imposes a
withdrawal notice period until September 9,
IS FURTHER ORDERED that Defendants shall obtain
substitute counsel no ...