NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MARLOWE PATENT HOLDINGS LLC, : Civil Action No. 3:10-cv-1199 (PGS)

:

 Plaintiff, :

:

v. :

:

DICE ELECTRONICS, LLC, et al. : 

:

Defendants. :

___________________________________ :

MARLOWE PATENT HOLDINGS LLC, : Civil Action No. 3:11-cv-7044 (PGS)

:

 Plaintiff, :

:

v. :

: MEMORANDUM AND ORDER

:

FORD MOTOR COMPANY : 

:

Defendant. :

___________________________________ :

This matter comes before the Court on a Motion by Szaferman Lakind Blumstein & 

Blader, PC (“Szaferman Firm”), counsel of record for Plaintiff Marlowe Patent Holdings LLC

(“Plaintiff”), to withdraw as counsel [dkt. no. 186]. Plaintiff opposed Szaferman Firm’s Motion 

by letter dated March 19, 2013. Neither Defendants Ford Motor Company (“Ford”) nor 

Precision Interface Electronics (“PIE”) have opposed Szaferman Firm’s Motion to Withdraw.1

 

1

Ford and Pie did, however, submit letters to the Court outlining their concerns regarding 

continued litigation of an allegedly “unenforceable and invalid patent”. Ford Letter at 2:8. And, 

on June 10, 2013, Defendants Ford and PIE filed a Rule 11 Motion against Plaintiff for 

prosecution of “an invalid and unenforceable patent” based on Plaintiff’s alleged sale of its

patent prior to filing the patent application as well as spoliation of evidence. Ford Letter at 1:3, 6.

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The Court has considered the Parties’ submissions pursuant to FED. R. CIV. P. 78 and, for the 

reasons set forth herein, Szaferman Firm’s Motion to Withdraw is GRANTED.

I. INTRODUCTION

Plaintiff retained Szaferman Firm to represent its interests in the patent litigation between 

Plaintiff and Dice Electronics, LLC (“Dice Litigation”) on May 17, 2012. Catalina Decl. at 2:4. 

Plaintiff also retained Szaferman Firm to represent its interest in the patent litigation between 

Plaintiff and Ford Motor Company (“Ford Litigation”) on August 23, 2012. Catalina Supp. Decl. 

at 10:27. Prior to Szaferman Firm’s involvement, the Court allowed Plaintiff’s prior counsel, 

Jeffrey Kaplan, Esq., to withdraw from representation in both the Dice and Ford Litigations [dkt. 

nos. 16, 167].

Szaferman Firm now seeks to withdraw because, it claims, Plaintiff has not paid for legal 

services rendered and out-of-pocket expenses incurred since September 2012.2 From August 

2012 to March 2013, Szaferman Firm sent a series of emails requesting payment of Plaintiff’s

outstanding balance as well as advising Plaintiff to seek new counsel if he could not afford to 

litigate the matters on a noncontingency basis. Catalina Supp. Decl. at 5-6:16, 6:18, 7:19, 8:23, 

12:31, 16:40, 17:42, 18:45, 19:48. As of April 2, 2013, Szaferman Firm claims Plaintiff owes it 

$163,666.16. Catalina Reply Decl. at 5:12.

II. LEGAL STANDARD

Unless new counsel is substituted, attorneys may not withdraw except by leave of the 

Court. L. CIV. R. 102.1. Pursuant to New Jersey Rule of Professional Conduct (“NJRPC”) § 

1.16(b), an attorney may withdraw from representing a client if:

(1) withdrawal can be accomplished without material adverse effect on the 

interests of the client;

 

2

Plaintiff’s last payment of $1,000.00 was received sometime in September 2012. 

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(2) the client persists in a course of action involving the lawyer’s services 

that the lawyer reasonably believes is criminal or fraudulent;

(3) the client has used the lawyer’s services to perpetrate a crime or fraud;

(4) the client insists upon taking action that the lawyer considers 

repugnant or with which the lawyer has a fundamental disagreement;

(5) the client fails substantially to fulfill an obligation to the lawyer 

regarding the lawyer’s services and has been given reasonable warning 

that the lawyer will withdraw unless the obligation is fulfilled;

(6) the representation will result in an unreasonable financial burden on 

the lawyer or has been rendered unreasonably difficult by the client; or

(7) other good cause for withdrawal exists.

NJRPC § 1.16 (b); see also Haines v. Liggett Group, Inc., 814 F. Supp. 414, 422-23 (D.N.J. 

1993). Further, NJRPC § 1.16(d) states, “upon termination of representation, a lawyer shall take 

steps to the extent reasonably practical to protect the client’s interest, such as giving reasonable 

notice . . . .” 

The Court looks to four factors in determining whether counsel may withdraw from a 

case: “(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.” Rusinow v. Kamara, 920 F. Supp. 69, 

71 (D.N.J. 1996); see also United States ex rel. Cherry Hill Convalescent Ctr. V. Healthcare 

Rehab Systems, Inc., 944 F. Supp. 244, 252-53 (D.N.J. 1990).

III. DISCUSSION

In support of its Motion, Szaferman Firm claims: (1) Mr. Catalina cannot personally 

afford to represent Plaintiff in this litigation under the circumstances; (2) Plaintiff did not fulfill

its obligations to make payments as set forth in the Retainer Provision; and (3) since August 

2012, Szaferman Firm has repeatedly counseled Plaintiff that payment must be made in a timely 

manner in order for Szaferman Firm to continue representation. Catalina Br. at 6-7. 

First, Szaferman Firm (and particularly, Mr. Catalina) claim that continued representation 

of Plaintiff will result in “an unreasonable financial burden on the lawyer.” See NJRPC 

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§1.16(b)(6). The Court agrees. See Erie Molded Plastic v. Nogah, 2013 WL 1200303, at *3 (3d 

Cir. Mar. 26, 2013) (granting counsel’s motion to withdraw, even in the absence of substitute 

counsel, when client refused to pay $5,000.00 in unpaid fees). It appears that, as of April 2013, 

Plaintiff owes Szaferman Firm $163,666.16 and has provided no assurances of future payment. 

Mr. Catalina, moreover, has a unique employment arrangement at Szaferman Firm. As an ‘Of 

Counsel’ attorney, Mr. Catalina’s compensation is derived solely from what Szaferman Firm 

actually receives in payment from the client. Catalina Decl. at 3:12. Plaintiff’s delinquency on 

its payments, therefore, has caused Mr. Catalina “personal, significant and unreasonable 

financial burden.” Id. at 3. 

Next, Plaintiff has had both adequate notice of its obligations as well as ample 

opportunity to cure its default. See NJRPC § 1.16(b)(5). As set forth in the Retainer Provision, 

which is signed by Plaintiff, the “client must pay the Firm’s fees and expenses when due and 

payable.” See Catalina Reply Decl. at 4:8-9. Although Plaintiff asserts that an alternative fee 

arrangement was reached as to both matters, the record suggests otherwise. First, with regard to 

the Dice Litigation, Plaintiff claims that Szaferman Firm agreed to seek out funding from an 

investor on its behalf. Szaferman Firm, however, maintains that they only counseled Plaintiff as 

to that option. Catalina Reply Decl. at 3-4:8. Plaintiff provides no evidence to contradict 

Szaferman Firm’s contention. Second, with regard to the Ford Litigation, Plaintiff claims that 

Szaferman Firm agreed to take the matter on a 100% contingency basis. But Szaferman Firm 

provides transcripts of email correspondence dated August 10, 13 and 21, 2012 explicitly 

rejecting a 100% contingency arrangement for the Ford Litigation. See Catalina Supp. Decl. at 

5:18, 5:19, 8:23. Plaintiff has provided no evidence to contradict these messages.

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Moreover, Plaintiff had over seven months’ notice to cure its default. In emails beginning 

as early as August 2012 and continuing up to March 19, 2013, Mr. Catalina clearly told Plaintiff 

that he would be forced to file a motion to withdraw if Plaintiff did not bring its payments up to 

date. Catalina Supp. Decl. at 5:16, 8:23, 10:28, 12:31, 16:40. 

Finally, granting the Motion will neither unduly delay resolution of the litigation nor 

prejudice Defendants. Both cases appear to be progressing according to their respective 

Scheduling Orders. And, in the absence of opposition by any Defendants, the Court cannot find 

undue prejudice. See Magargal v. New Jersey, 2011 WL 5526077, at *2 (D.N.J. Nov. 14, 2011)

(granting motion to withdraw where counsel and plaintiff differed as to course of litigation and 

defendants did not object).

IV. CONCLUSION & ORDER

In light of the amount of money claimed to be due to Szaferman Firm as well as 

Plaintiff’s alleged misrepresentations about the validity of the patent and alleged spoliation of 

evidence, it would be unjust to require Szaferman Firm to continue serving as counsel without 

compensation. Plaintiff, moreover, has sufficient time and opportunity to seek new counsel 

without causing undue delay in the proceedings. Accordingly, 

IT IS on this 17

th day of June, 2013,

ORDERED that Szaferman Firm’s Motion to withdraw is GRANTED; and it is further 

ORDERED that Plaintiff shall have twenty (20) days from the date of this Order to 

secure new counsel; and it is further 

ORDERED that the Court will conduct an in-person status conference on July 9, 2013 at 

4:00 PM. 

s/ Douglas E. Arpert 

DOUGLAS E. ARPERT

UNITED STATES MAGISTRATE JUDGE

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