UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) JEFFREY M. WILLETT, ) ) Plaintiff, ) ) v. ) Civil Action No. 18-cv-1707-(TSC) ) MICHAEL R. POMPEO, Personally and in) his official capacity as Secretary, U.S. ) DEPARTMENT OF STATE, et al., ) ) Defendants. ) )

MEMORANDUM OPINION

Plaintiff Jeffrey M. Willett has filed an objection, ECF No. 48, to the Motion to Withdraw

filed by his attorney Jenifer Wicks of the Blind Justice Legal Services Corporation, ECF No. 41.

Because the court granted Wicks’ motion prior to receiving Willett’s objection, the court will

construe the objection as a motion to reconsider. For the reasons set forth below, the court will

DENY Willett’s motion.

I. BACKGROUND

Wicks brought this case on behalf of Willett, who resides in the Netherlands, and who

alleges that State Department employees illegally revoked his U.S. passport in retaliation for his

complaints about actions the Social Security Administration took with respect to a third party.

ECF No. 1, Compl. §§ 1-2, 7, 30-52.

Wicks filed this action on July 20, 2018 but did not effectuate service of process within

ninety days as required by Federal Rule of Civil Procedure 4(m). The court therefore entered an

order directing her to show cause why the action should not be dismissed for failure to prosecute. Page 1 of 14 10/24/18 Min. Order. Wicks filed a timely response in which she asserted that she had served the

Defendants but was awaiting confirmation of mailing. ECF No. 4. Shortly thereafter, Defendants

entered an appearance. ECF No. 6. With Wicks’ consent, on December 16, 2018, the court

granted Defendants an extension of time to answer, making their answer due February 14, 2019.

12/16/18 Min. Order. Defendants also sought and received (with Wicks’ consent) two additional

extensions of time. 2/12/19 Min. Order; 3/31/19 Min. Order.

Defendants filed a timely motion to dismiss all official capacity claims. ECF No. 10.

After obtaining an extension, Wicks filed a timely opposition, and Defendants obtained an

extension of their deadline, then filed a timely reply. 5/2/19 Min. Order; 6/27/19 Min. Order;

ECF Nos. 13, 15. The court denied Defendants’ motion to dismiss without prejudice, but allowed

Wicks until March 12, 2020 to file a motion to amend the Complaint as to the official capacity

claims. 2/28/20 Min. Order. Wicks subsequently sought two extensions of the deadline to file the

motion to amend due to her workload, illness, computer problems, and Willett’s illness. ECF

Nos. 22, 26.

Meanwhile, after several extensions, Defendants moved to dismiss all individual capacity

claims. ECF No. 28. On May 31, 2020, Wicks filed an unopposed motion for an extension of

deadlines on the grounds that she had suffered a stroke. ECF No. 29. The motion contained

incomplete words, as well as words that were improperly strung together without appropriate

spacing. See id. The court granted her request for an extension through July 31, 2020. 6/2/20

Min. Order.

Wicks filed another timely motion, seeking an extension through August 15. ECF No. 30.

Not only did this motion contain incomplete words, it also contained groupings of letters that were

Page 2 of 14 not words, sentences improperly strung together, repetitive paragraph numbering and unusual

capitalization. See id. (“[T]he Court issued an order for the filing of an amended complaint.and

then a schedulke fot briefing of s renewed motion to dismiss. . . . COUNSEL HAS CONSULTED

WITH BOTH MRCOUNSEL AND NEITHER OPPOSE THIS REQUEST.”). Rather than extend

the deadline until a specified date, the court stayed the briefing deadlines pending further order of

the court. 7/31/20 Min. Order. The court ordered Wicks to file a status report by August 28, 2020

and, if medically authorized to return to work, to attach a proposed order for moving forward with

the case. Id.

Wicks filed a timely motion on August 15, asking the court to stay the case pending a

medical release to return to work. ECF No. 32. The motion contained the same obvious errors as

did the previous motions. See id. at ECF pp. 1-2. (“DJEFFREY WILLETT, by and through

undersigned counsel, respectfully moves this Honorable Court pursuant to Federal Rules of Civil

Procedure an, for stay in this matter pending counsel’s return to work. In support of this motion

the counsel states the following based on information and belief: (1) COUNSEL FOR MRSTHE

PLAINTIFF JENIFFER WICKS HAD A STROKE ON APRIL1, 2020 AND WAS RELEASED

HOME ON APRIL 24. SHE RETURNS FORRASSESSMENT IN the coming weeks TO

DETERMINE WHEN SHE SILL RETURN TO WORK, WHICH AT THIS TIME IS

PROJECTED TO BE fall 2020. . . . [C]ounsel requess that the court stay this matter pendinf

receipt of status reports from counsel and vacate the Aust 15 2020 deadline for the amended

complaint.”). The proposed order was written in what appeared to be at least 22-point font. See

ECF No. 32-1.

Page 3 of 14 The court granted the motion and ordered Wicks to file monthly reports beginning October

1, 2020, and, once released to return to work, to attach a proposed order for moving forward with

the case. 8/24/2020 Min. Order. Wicks subsequently filed three identical timely status reports

with unusual capitalization, but no apparent errors. ECF Nos. 33–36. None contained proposed

orders as mandated by the court, but on November 27, 2020, Wicks filed an Amended Complaint

containing 205 paragraphs, not including sub-paragraphs. ECF No. 37. While the Amended

Complaint appeared to add allegations (the original Complaint contained 195 paragraphs, not

including sub-paragraphs), the track changes feature in the document only showed format

changes, not textual changes. Compare ECF No. 37 with ECF No. 1. Several days later, Wicks

filed a motion to strike the Amended Complaint, explaining that she had returned to work part-

time but had lost edits she saved to the document. ECF No. 38. The motion contained errors such

as those contained in the prior motions and the proposed order appeared to be in at least 22-point

font. See id. (“Counsel is back to work on a psrt time basis . . . [C]ounasks that ECF filing 37 be

struck.”).

The court granted the motion, struck the Amended Complaint, and directed the parties to

meet, confer, and file a joint status report and proposed order for moving forward. 12/29/20 Min.

Order. Defense counsel filed a timely joint report, ECF No. 39. On January 15, 2021, the court

adopted the parties’ proposed briefing schedule, which required a proposed amended complaint on

the official-capacity claims by March 31, 2021 and any response to the motion to dismiss the

individual-capacity claims by April 16, 2021. 1/15/21 Min. Order. The court had previously

required that Wicks file a “red-lined” version of the Amended Complaint. See 2/28/20 Min.

Order.

Page 4 of 14 The timely Amended Complaint contained 205 paragraphs, ECF No. 40, but while Wicks’

ECF docket entry stated that she had filed a “redlined” version as an exhibit, the exhibit did not

contain “red-lining” or any other notations showing the changes from the prior version to the

amended version of the document. ECF No. 40-1.

The following day, March 31, 2021, without leave of court, Wicks attempted to file

another Amended Complaint four times before one was accepted by the Clerk’s office—the first

three had been improperly docketed. ECF Nos. 43–46. She attached a “red-lined” version. ECF

No. 46-1.

That same day, Wicks filed what appear to be two identical motions to withdraw. ECF

Nos. 41–42. She explained that an attorney in the Netherlands had retained her to represent

Willett, but the “funds provided by Mr. Willet’s former attorney” had been depleted and no

further funds had been forthcoming. ECF No. 41 ¶ 1. Wicks stated that she had attempted to

secure “additional counsel” to assist her given her “limited capacity,” and she believed she had

located someone, but she had been unable to retain another attorney because Willett had not

provided additional funding. Id. ¶ 2. She also indicated that she had been medically cleared to

work 24-30 hours per week but was already working at capacity for Blind Justice Legal Services.

Id. at 1 n.1. Finally, Wicks certified that she had sent a copy of her motion to the last known

email address for Willett and that she had asked him for a mailing address, but he had not

provided one. Id. at 2. She further certified that she advised Willett that if he intended to object

to the motion he must notify the Clerk of the Court within five days of service of the motion. Id.

The motion did not contain any obvious errors.

Page 5 of 14 Although the Local Civil Rule in place at the time of Wicks’ motion provided seven days

for clients to object to withdrawal motions, LCvR 83.6(c), the court inadvertently granted the

motion the following day, April 1, 2021, “in light of Wicks’ medical restrictions.” ECF No. 47.

The court further ordered Willett to provide the court, by May 31, 2021, his address and telephone

number as required by the court’s local rules. Id. at 1 (citing LCvR 5.1(c)(1)). The court directed

the Clerk of the Court to serve Willett at the email address Wicks had provided. Id. at 2.

Willett’s “response” is the pleading currently at issue. ECF No. 48, Pls. Response. He

first argues that Wicks’ motion to withdraw was improper because she forwarded it to him via

email in contravention of the court’s local rules, which provide for service via “paper form” on

parties who do not have CM/ECF passwords. Id. ¶¶ 3-10 (citing LCvR 5.4(d)(1); 5.4(e)(2);

5.4.(d)(2); Fed. R. Civ. P. 5(b)(2)(C); (b)(E)). He also objects because the motion did not contain

a “statement of specific points of law and authority,” as well as a statement of facts as required by

Local Civil Rule 7(a). Pls. Response ¶ 11.

Willett further alleges that Wicks incorrectly stated in her motion that he had five days in

which to object and the court, in turn, granted the motion before the expiration of the required

seven-day objection window, preventing him from responding to the motion. 1 Pls. Response ¶¶

14, 17. He also points out that the court allowed Wicks to withdraw “in light of Wicks’ medical

restrictions,” without requiring Wicks to submit supporting evidence, and despite the fact that she

continued to work on other cases. Id. ¶¶ 30-31, 51-53.

1 It is unclear when the change occurred, but the rule previously provided for a five-day window. See Byrd v. District of Columbia,

(D.D.C. 2003).

Page 6 of 14 Willett claims Wicks never informed him that she was experiencing medical limitations

and that she attempted to extort money from him by sending him a new retainer agreement and

threatening to withdraw if he failed to sign the agreement. Id. ¶¶ 35-46, 53, 55. He also alleges

that she never provided him an accounting despite originally agreeing to bill him for services

rendered, and thus she has not established that his account was depleted. Id. ¶ 55. Willett claims

Wicks failed to communicate with him sufficiently during this litigation, including during her

illness, and that he is prejudiced by her withdrawal because this litigation has been ongoing for

many years. Id. ¶¶ 35-37, 47. Accordingly, he argues the court’s order allowing Wicks to

withdraw is void pursuant to Federal Rules of Civil Procedure 60(b)(3) and 60(d)(3). Id. ¶¶ 63–

64. He states that he does not wish to represent himself pro se, and that he has unsuccessfully

attempted to secure replacement counsel, but questions his ability to find replacement counsel on

“short notice.” Id. ¶ 65. He asks the court to vacate its order allowing Wicks to Withdraw.

II. ANALYSIS

A. Alleged Lack of Evidentiary Support for Illness

Willett’s argument that Wicks should not have been permitted to withdraw without

supporting evidence of her medical condition and while she continued to work on other cases is

unavailing.

The evidence of Wicks’ medical limitations appears in the record. The numerous errors in

her pleadings, with improperly strung together sentences lacking proper grammar, spelling and

spacing, and the duplicative nature of her filings were sufficient to establish that her medical

condition had severely limited her ability to practice. And to the extent she has been cleared to

resume practicing with restrictions on her hours, it is not unusual or improper that she has elected

Page 7 of 14 to withdraw from representation in a case in which she contends she is no longer being

compensated.

B. Compliance with Local Rule 83.6

Local Rule 83.6 provides that “if a party’s written consent is not obtained . . . an attorney

may withdraw an appearance for a party only by order of the Court upon motion by the attorney

served upon all parties to the case.” LCvR 83.6(c). The motion “shall be accompanied by a

certificate of service listing the party’s last known address, unless such address does not appear on

the public docket, and stating that the attorney has served upon the party a copy of the motion and

a notice advising the party to obtain other counsel.” Id. The district court has the discretion to

grant or deny such a motion. Byrd v. D.C.,

(D.D.C. 2003) (citation

omitted).

The court may deny a motion to withdraw if “the withdrawal would unduly delay trial of

the case, or be unfairly prejudicial to any party, or otherwise not be in the interest of justice.”

LCvR 83.6(d). “In reaching its ruling, the court also may consider factors such as the length of

time the case and dispositive motions have been pending, the time it would take for the

unrepresented party to search for and secure new legal representation, and the degree of financial

burden that counsel would suffer if the court required [her] to remain in the case.” Byrd,

(citation omitted). Moreover, a court may consider whether the relationship

between the attorney and client has deteriorated beyond repair. See Hudson v. Am. Fed’n of Gov’t

Emps.,

(D.D.C. 2019).

Page 8 of 14 1. Certificate of Service

Willett argues that Wicks’ motion was improper because it did not comply with Local

Rule 83.6, which generally requires that motions to withdraw include a “certificate of service with

the party’s last known address.” LCvR 83.6(c). Wicks filed a certificate of service using

Willett’s email address, not a physical mailing address.

Local Rule 83.6(c) requires use of the last known address, except where the address does

not appear on the public docket.

Here, the Complaint did not contain Willett’s address, nor

did it appear on the public docket at that juncture. Wicks explained that she served the motion on

Willett via email because Willett had not provided her with a mailing address. ECF No. 41 at 2.

Accordingly, the court finds that Wicks’ service of Willett via email did not violate the service

requirements in Local Rule 83.6(c).

2. Seven-day objection window

Willett alleges that Wicks incorrectly stated in her motion that he had five days in which to

object, and the court, in turn, improperly granted the motion before the actual seven-day objection

window mandated in Rule 83.6 had expired. Pls. Response ¶¶ 13, 17. As noted above, the court,

conceding that it granted Wicks’ motion before the objection window had closed, will construe

Willett’s objection as a motion to reconsider and therefore Willett’s rights will not be adversely

affected by Wicks’ incorrect statement regarding a five-day window, nor the court’s premature

order granting the motion.

3. Undue delay and unfair prejudice.

Willett appears to argue that because this litigation has been pending since 2018, Wicks’

withdrawal has caused him both “undue delay” and “unfair prejudice.” Pls. Response ¶ 47. He

Page 9 of 14 provides no further explanation regarding the purported prejudice, but asserts that he does not

wish to represent himself pro se and that he questions his ability to find replacement counsel on

“short notice.” Id. ¶ 65.

The court finds that Willett has not suffered undue delay or unfair prejudice by Wicks’

withdrawal from the case. Although a court may deny a motion if “withdrawal would unduly

delay trial” of the case, no undue delay exists here because this case is still in its “infancy[,]

[d]iscovery has not commenced, [and] trial has not been scheduled.” Honda Power Equip. Mfg.,

Inc. v. Woodhouse,

(D.D.C. 2003). Although motions to dismiss remain

outstanding, the delay has been primarily caused by Wicks’ requests for extensions both before

and after her illness. And, more importantly, this court stayed briefing on those motions, so her

withdrawal has not negatively impacted pending deadlines.

A client is not unfairly prejudiced when he simply needs to expend “time, effort, and

funding” to find replacement counsel, as these “are burdens facing every litigant.” See Banneker

Ventures, LLC v. Graham, No. 13-391 (RMC),

, at *3 (D.D.C. Mar. 31, 2016).

And Willett has had sufficient time since he filed his objection to attempt finding replacement

counsel.

This is not a case like Byrd v. District of Columbia,

, in which the

court denied a motion to withdraw because, inter alia, a settlement conference was scheduled in

two weeks, and discovery was closing in a month. Nor is this akin to Barton v. District of

Columbia,

(D.D.C. 2002), in which the court allowed counsel to

withdraw upon condition that they respond to a dispositive motion in a case involving “document-

intensive, somewhat complicated, land-use” issues. See also Banneker,

, at *3

Page 10 of 14 (granting motion to withdraw and noting that plaintiff was “not losing the only group of lawyers

who are, or could become, knowledgeable about the underlying disputes or someone of special

expertise in an odd corner of the law”).

C. Lack of Accounting and Lack of Communication with Client

Willett also challenges Wicks’ withdrawal because she purportedly failed to provide him

with an accounting for her services, despite originally agreeing to bill him, and thus has not

established that his account was depleted. Pls. Response ¶ 55. Willett further claims that Wicks

attempted to extort money from him by sending him a new retainer agreement and threatening to

withdraw if he failed to sign the agreement.

On July 14, 2022 the court ordered Wicks to file an affidavit (either on the public docket

or under seal) supporting her assertion that the retainer has been depleted. 7/14/22 Min. Order.

Wicks did not respond and has not sought an extension of the deadline.

While the court is concerned about Wicks’ failure to comply with its order, her failure to

respond does not change the outcome of the representation issue currently before this court. First,

there is nothing unusual about an attorney asking a client to sign a new retainer agreement to

ensure payment going forward. See Honda Power Equip. Mfg., Inc.,

(noting that

an attorney “should not be in a position where he or she has not been paid, and yet must continue

to work for the client at his or her own expense.”). But even if the retainer has not been depleted,

payment conflicts are only one of a number of factors a court might consider when ruling on a

motion to withdraw. See Byrd,

(noting that the court should consider, inter

alia, whether withdrawal will have a “disruptive impact . . . on the prosecution of the case”). And

to the extent a client challenges an attorney’s billing practices, records, or lack thereof, he may

Page 11 of 14 seek relief through the District of Columbia Bar, which has jurisdiction to review complaints that

an attorney has failed to account for client funds. D.C. Bar R. XI § 1 (“[M]members of the

District of Columbia Bar . . . are subject to the disciplinary jurisdiction of [the District of

Columbia Court of Appeals] and its Board on Professional Responsibility.”); D.C. Bar R. X

(“The District of Columbia Rules of Professional Conduct . . . shall provide the standards

governing the practice of law in the District of Columbia”); D.C. R. Prof. Conduct 1.16(d) (“In

connection with any termination of representation, a lawyer shall take timely steps to the extent

reasonably practicable to protect a client’s interests, such as . . . refunding any advance payment

of fee or expense that has not been earned or incurred.”).

Willett further complains that Wicks failed to communicate with him sufficiently during

this litigation, including during both their illnesses. Pls. Response ¶¶ 35-46, 53, 55. This

complaint is also one over which the District of Columbia Bar has jurisdiction to investigate. In

re Ekekwe-Kauffman,

(D.C. 2019) (noting that while “an attorney need not

communicate with a client as often as the client would like,” the rules of Professional Conduct

require attorneys to fulfill “reasonable client expectations for information”) (cleaned up and

citations omitted).

While these complaints are not for this court to resolve, they do provide yet more of a

basis for this court’s decision to allow Wicks to withdraw, as it is clear that the two have reached

a point where the attorney-client relationship is irretrievably broken. See Laster v. District of

Columbia,

(D.D.C. 2006) (granting attorney’s motion to withdraw based

on “irretrievably broken” client relationship); Partridge v. Am. Hosp. Mgmt. Co., 289 F. Supp. 3d

Page 12 of 14 1, 24 (D.D.C. 2017) (permitting withdrawal based on attorney’s “deteriorating relationship” with

clients).

D. Compliance with Local Rule 7(a)

Willett argues that Wicks’ motion was improper because it did not comply with Local

Rule 7(a), which requires that all motions “include or be accompanied by a statement of the

specific points of law and authority that support the motion, including where appropriate a concise

statement of facts.” LCvR 7(a). The court disagrees, finding that Wicks’ motion, which sets forth

the factual basis for her request to withdraw, along with a citation to the appropriate local rule, is

sufficient. 2

E. Federal Rules of Civil Procedure 60(b)(3) and 60(d)(3)

Finally, Willett seeks relief from the court’s order permitting Wicks to withdraw pursuant

to Federal Rules of Civil Procedure 60(b)(3) and 60(d)(3) because of Wicks’ alleged “fraud” in

making “deliberate misrepresentations intended to secure a quick withdrawal through dishonesty,

fraud, and deceit.” Pls. Response ¶¶ 55, 63-64. Willett is not entitled to relief under either of

these rules.

Rule 60(b)(3) allows a court to set aside or grant relief from a final judgment for

“fraud, . . . misrepresentation, or misconduct by an opposing party.” Fed. R. Civ. P. 60(b)(3).

The court is unaware of legal authority indicating that a movant’s attorney falls within the

definition of “an opposing party,” and the court’s order was not a final judgment.

2 Willett also raises other objections regarding Wicks’ alleged violation of the local rules, such as her purported failure to notify the court that her physical address had changed and her failure to confer with the Defendants prior to filing her motion. See e.g., Pls. Response ¶¶ 18-19. None of these alleged violations negatively impacted Willett’s rights. Page 13 of 14 Rule 60(d)(3) also provides that a court may “set aside a judgment for fraud on the court.”

Fed. R. Civ. P. 60(d)(3). “Fraud on the court . . . is directed to the judicial machinery itself and is

not fraud between the parties or fraudulent documents, false statements or perjury.” Baltia Air

Lines, Inc. v. Transaction Mgmt., Inc.,

(D.C. Cir. 1996) (citations omitted).

“Examples include the bribery of a judge or the knowing participation of an attorney in the

presentation of perjured testimony.”

(citation omitted). A party alleging fraud upon the

court must present “clear and convincing evidence.” Shepherd v. Am. Broad. Cos.,

(D.C. Cir. 1995) (citations omitted). Willett has not met this standard, and, assuming he

had, such fraud would be an even more compelling reason to allow Wicks to withdraw.

III. CONCLUSION

For the reasons set forth above, the court will DENY Willett’s request for relief from the

court’s order allowing his former attorney to withdraw, ECF No. 48.

Date: October 25, 2022

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

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