Luxwear Ltd. v. Adaptive Research & Development Group, LLC

Background

Abrams Fensterman, LLP moved to withdraw as counsel for defendant Adaptiv Research & Development Group d/b/a Adaptiv Biomed. The court treated the motion as seeking permission for both appearing attorneys, Edward A. Smith and Daniel Stuart Alter, to withdraw.

On March 28, 2023, the court granted a related request to seal documents but denied the withdrawal motion without prejudice to renewal under Local Civil Rule 1.4. The court directed counsel to state the reasons for withdrawal, address whether any discovery remained, state whether it claimed a retaining lien on Adaptiv’s papers and files, explain the basis for any charging lien, and serve the motion papers and order on Adaptiv.

Motion for reconsideration

Counsel promptly moved for reconsideration. Counsel argued that the court had misunderstood the original motion because nonpayment of fees was not the basis for seeking permission to withdraw. After reviewing the sealed declaration, the court accepted that counsel had raised nonpayment only to provide context for the requested charging lien.

The court nevertheless concluded that this clarification did not correct the deficiencies in the original motion. The publicly filed papers did not state the basis for withdrawal, and the sealed declaration provided only a reference to provisions of the New York Rules of Professional Conduct without facts allowing the court to determine whether counsel had a satisfactory reason to withdraw. The papers also did not address the remaining discovery, a retaining lien, or the basis for a charging lien when Adaptiv had asserted no claims or counterclaims in the case.

Ruling and required next steps

The court denied the reconsideration motion. It stated that counsel may renew the motion for permission to withdraw, but the renewed papers must state the reasons for withdrawal, with sensitive facts permitted under electronic seal when necessary to protect confidentiality. The papers must also address remaining discovery, any retaining lien, and the requested charging lien.

Before filing a renewed motion, counsel must serve Adaptiv with the unredacted motion papers and the order and file proof of service. Adaptiv may respond by letter within seven calendar days after service, and other objections or responses must also be submitted within the time specified by the court. The court will decide later whether a hearing or conference is necessary. The Clerk was directed to close the reconsideration motion at docket entry 58. This order addressed counsel’s withdrawal and related lien issues; it did not decide the underlying claims in the case.