UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY (TRENTON)

Transcription

1 Case 3:09-cv FLW-LHG Document 76-2 Filed 10/04/13 Page 1 of 21 PageID: 1326 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY (TRENTON) RYAN HART, individually and on behalf of all others similarly situated, Plaintiffs, vs. Case No. 3:09-cv FLW-LHG ELECTRONIC ARTS, INC., a Delaware Corporation; and DOES I-50, Defendants. MOTION (I) FOR LEAVE TO FILE THIRD AMENDED COMPLAINT REPLACING RYAN HART, THE CURRENT NAMED CLASS REPRESENTATIVE WITH PROPOSED REPRESENTATIVES MYRON ROLLE, JACK CORCORAN, AND JACKSON RICE; AND (II) TO WITHDRAW AS COUNSEL FOR CURRENT NAMED CLASS REPRESENTATIVE RYAN HART, IN HIS INDIVIDUAL CAPACITY

2 Case 3:09-cv FLW-LHG Document 76-2 Filed 10/04/13 Page 2 of 21 PageID: 1327 TABLE OF CONTENTS INTRODUCTION BASIS FOR THIS MOTION... 1 RELEVANT PROCEDURAL BACKGROUND... 5 ARGUMENT... 6 I. LEAVE TO AMEND SHOULD BE GRANTED DUE TO THE GENERAL PRESUMPTION IN FAVOR OF AMENDMENT, AND DUE TO THE FACT THAT DEFENDANT WILL NOT BE PREJUDICED...6 A. Court Freely Grant Leave to Amend...6 B. Courts Deny Amendment Only in Limited Circumstances That Do Not Apply in This Case...7 C. Defendant will not be Prejudiced or Disadvantaged in Any Way Since No New Claims Are Asserted, and Because Hart s Discovery Has Not Yet Commenced, But, in Any Case, Discovery In This Action Will Be Averted If the Settlement Is Confirmed... 8 II. SINCE COURTS ROUTINELY ALLOW FOR THE SUBSTITUTION OF PLAINTIFFS, LEAVE TO AMEND SHOULD BE GRANTED III. PROPOSED CLASS COUNSEL HAS DEMONSTRATED GOOD CAUSE TO WITHDRAW ITS APPEARANCE...12 CONCLUSION ii-

3 Case 3:09-cv FLW-LHG Document 76-2 Filed 10/04/13 Page 3 of 21 PageID: 1328 TABLE OF AUTHORITIES Case(s) Page(s) Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989)... 6 Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874, 886 (3d Cir. 1992)... 7 Boileau v. Bethlehem Steel Corp., 730 F.2d 929, 938 (3d Cir. 1984)... 7 Cornell & Co. v. Occupational Safety & Health Review Comm n, 573 F.2d 820, 823 (3d Cir. 1978)... 7 Dole v. Arco Chemical Co., 921 F.2d 484, (3d Cir. 1990)... 6, 7 Forman v. Davis, 371 U.S. 178, 182 (1962)... 7 Greenfield v. Villager Indus., Inc., 483 F.2d 824, 832 (3d Cir. 1973)... 7 Greig v. Macy s Northeast, Inc., No. 95 cv-1259, 1996 U.S. Dist. LEXIS (D.N.J. Nov. 21, 1996)...13, 14 Haines v. Liggett Group, Inc., 814 F. Supp. 414, 422 (D.N.J. 1993)...12 Heartland Commc ns, Inc. v. Sprint Corp., 161 F.R.D. 111, 115 (D. Kan. 1995)...10 Heyl & Paterson International, Inc. v. F.D. Rich Housing, Inc., 663 F.2d 419, 426 (3d Cir. 1981)... 8 In re Aluminum Phosphide Antitrust Litig., 160 F.R.D. 609, 613 (D. Kan. 1995) iii-

4 Case 3:09-cv FLW-LHG Document 76-2 Filed 10/04/13 Page 4 of 21 PageID: 1329 In re Corn Derivatives Antitrust Litigation, 748 F.2d 157, (3d Cir. 1984) In re General Motors Corp., 55 F.3d 768, 801 (3d Cir. 1995)... 3 In re Herley Indust. Inc. Sec. Litig., 2009 WL at *7 (E.D. Pa. Sept. 30, 2009) In re Motor Fuel Temp. Sales Pract. Litig., 2009 WL , at *1-3 (D.Kan. Sep. 24, 2009)...10 In re Prudential Ins. Co. America Sales Prac. Litig., 148 F. 3d 282, 319 (3d Cir. 1998)...9 Kiser v. General Elec. Corp., 831 F.2d 423 (3d Cir. 1987)... 8 Lindley v. Life Investors Ins. Co. of Am., Nos & , 2009 WL Maywalt v. Parker & Pasley Petroleum Co., 67 F.3d 1072, 1078 (2d Cir. 1995) Romero v. ALLSTATE INS. CO., No. 01:3894, 2010 WL Rusinow v. Kamara, 920 F. Supp (D.N.J. 1996)...12, 13 Wright, Miller & Kane, 6A Fed. Prac. & Proc. Civ. 2d 1495 (3d. ed.)... 8 Other Authorities FED. R. CIV. P. 15(a)(2)... 6 L. Civ. R , 12, 13 -iv-

5 Case 3:09-cv FLW-LHG Document 76-2 Filed 10/04/13 Page 5 of 21 PageID: 1330 Rule. 1.16(b)(6)...2 Rule 1.16(b)(7)...3 Rule R.P.C. 1.16(b)...12 R.P.C. 1.16(b)(4)...12, 14 Manual for Complex Litigation (Third) at v-

6 Case 3:09-cv FLW-LHG Document 76-2 Filed 10/04/13 Page 6 of 21 PageID: 1331 INTRODUCTION Proposed Plaintiffs Co-Lead Class Counsel ( Proposed Class Counsel ) has been litigating this case since February After recently participating in a mediation with Defendant Electronic Arts, Inc. ( EA or Defendant ), Counsel helped reach a potentially historic settlement in principle for a significant amount of money to resolve this putative class action, together with the In re NCAA Name and Likeness Licensing Litigation, pending in the Northern District of California (also known as the Keller/O Bannon case). Now, because the current lead plaintiff no longer adequately represents the class, and because irreconcilable differences have developed between Hart and Counsel, Proposed Class Counsel moves the Court to withdraw from representing Ryan Hart and for leave to file a Third Amended Complaint to replace the current proposed lead plaintiff with newly proposed and representative lead plaintiffs who will adequately represent the interests of the proposed putative class. BASIS FOR THIS MOTION Proposed Class Counsel has been litigating this action for more than four years, culminating in their recent participation in negotiating a significant class settlement that will benefit perhaps greater than one hundred thousand plaintiffs in the putative class. However, since shortly after the announcement of the proposed

7 Case 3:09-cv FLW-LHG Document 76-2 Filed 10/04/13 Page 7 of 21 PageID: 1332 settlement, current class representative Ryan Hart ( Hart ) has chosen not to communicate with Proposed Class Counsel. Instead, Hart has purported to appoint his father-in-law (a non-lawyer) to act as his personal attorney-in-fact, and has communicated information to Proposed Class Counsel through his father-in-law indicating that Hart s narrow personal interests now conflict with the absent class members and that he no longer adequately represents the class as a whole. Thus, Hart has failed to cooperate in the representation and has made it unreasonably difficult for Proposed Class Counsel to carry out representation of the putative class action effectively, entitling Proposed Class Counsel to withdraw from representing him pursuant to L. Civ. R and Rule 1.16(b)(6) of the New Jersey Rules of Professional Conduct. Accordingly, Proposed Class Counsel moves for leave to replace Hart with three new class representatives who have agreed to serve in that role and would adequately represent the class. Hart and his father-in-law (who is not a member of the putative class) have also retained another law firm that without this Court s permission has purported to terminate Proposed Class Counsel effective immediately and has instructed Proposed Class Counsel to turn over Hart s file to the new firm and sign a consent to substitution of counsel. Proposed Class Counsel cannot abide by these instructions because Proposed Class Counsel has fiduciary duties to the absent members of the putative class. Carrying out the unilateral instructions of the lead -2-

8 Case 3:09-cv FLW-LHG Document 76-2 Filed 10/04/13 Page 8 of 21 PageID: 1333 plaintiff (and his non-class-member father-in-law), who are now pursuing their own unique personal interests that are contrary to the interests of the class as a whole, would be contrary to law and would breach Proposed Class Counsel s fiduciary duties to the class as a whole. 1 Proposed Class Counsel also has other good cause for withdrawal pursuant to Rule 1.16(b)(7) of the New Jersey Rules of Professional Conduct, and has additional specific grounds for replacing Hart as class representative, but concerns about the attorney-client privilege and confidentiality prohibit Proposed Class Counsel from divulging those additional grounds absent a Court Order compelling further explanation. For all of these reasons, Proposed Class Counsel must advise the Court that Hart is no longer a suitable class representative, and that in order to advance the interests of the entire class, Proposed Class Counsel urges the Court to grant this motion for leave to file the proposed and accompanying Third Amended Complaint (Annexed to the Notice of Motion filed herewith), thereby substituting 1 See, e.g., In re General Motors Corp., 55 F.3d 768, 801 (3d Cir. 1995) (holding that class counsel purporting to represent a class also owe fiduciary duties to putative class members once the complaint is filed.). -3-

9 Case 3:09-cv FLW-LHG Document 76-2 Filed 10/04/13 Page 9 of 21 PageID: 1334 out the current named class representative in favor of new class representatives Myron Rolle 2, Jack Corcoran 3 and Jackson Rice. 4 The proposed and accompanying Third Amended Complaint does not raise any new claims and granting the motion for leave to amend will not result in any delay and/or prejudice to the Defendant. Rather, the proposed Third Amended Complaint is intended to permit newly proposed class representatives to be placed in a position where they can adequately represent the interests of all class members by seeing the previously negotiated settlement through the settlement confirmation process, or otherwise by advancing the litigation on behalf of the putative class in the absence of a settlement. Moving counsel have conferred with Defendant EA, and as of the time this motion was made, Defendant was not yet able to confirm its position with respect to the instant motion filed by Proposed Class Counsel. 2 Myron Rolle, a former strong safety for the Florida State University football team, is a citizen of the State of New Jersey residing in Galloway, New Jersey. 3 Jack Corcoran, a former fullback for the Rutgers University football team, is a citizen of the State of New Jersey residing in Atlantic City, New Jersey. 4 Jackson Rice, a former punter for the University of Oregon football team, is a citizen of the State of California residing in Moraga, California. -4-

10 Case 3:09-cv FLW-LHG Document 76-2 Filed 10/04/13 Page 10 of 21 PageID: 1335 RELEVANT PROCEDURAL BACKGROUND In 2009, Hart, formerly a Rutgers University NCAA Men s Division I football player, brought suit on his behalf, and on behalf of others similarly situated, against Defendant for violating their rights of publicity as recognized under New Jersey law. Specifically, the claims stemmed from the Defendant s use of Hart s and Class Members likeness and biographical information in its NCAA Football series of videogames. On behalf of himself and Class Members, Plaintiff asserted claims concerning: (i) Invasion of privacy Misappropriation of Identities and Likeness; and (ii) Infringement Appropriation of Plaintiff and Class Members Identities and Likeness for a Commercial/Trade Purpose. The Defendant has previously filed a motion for summary judgment in this action, asserting that its expressive games were protected by the First Amendment. This Court agreed with the Defendants and granted summary judgment. Plaintiff appealed that decision, and, on May 21, 2013, the Third Circuit reversed the grant of summary judgment. On September 10, 2013, the parties participated in a lengthy mediation, at significant expense, with continuous negotiations and significant effort that followed in the days and weeks thereafter. On September 24, 2013, EA served its Petition for Certiorari to the Supreme Court to review the Third Circuit s decision in this case. Later that same day, Proposed Class Counsel, in combination with Interim Co-Lead Counsel appointed by the -5-

11 Case 3:09-cv FLW-LHG Document 76-2 Filed 10/04/13 Page 11 of 21 PageID: 1336 Northern District of California to oversee the O Bannon/Keller actions, reached agreement in principle with Defendant to settle all pending litigation on behalf of the putative plaintiff classes. Certain steps now need to be taken to advance the negotiated settlement on behalf of putative class members. However, because Hart has made it unreasonably difficult to carry on with representing the putative class as long as he remains the lead plaintiff, Proposed Class Counsel seek to fulfill their fiduciary duties to the class as a whole by filing this motion for leave to replace the current proposed class representative with three additional class representatives who will adequately represent the entire class. ARGUMENT I. LEAVE TO AMEND SHOULD BE GRANTED DUE TO THE GENERAL PRESUMPTION IN FAVOR OF AMENDMENTAND DUE TO THE FACT THAT DEFENDANT WILL NOT BE PREJUDICED A. Courts Freely Grant Leave to Amend. Federal Rule of Civil Procedure 15(a)(2) provides that courts should freely give leave when justice so requires. Fed. R. Civ. P. 15(a)(2); see also Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989) ( We have noted that the courts have shown a strong liberality in allowing amendments under Rule 15(a). ); Dole v. Arco Chemical Co., 921 F.2d 484, (3d. Cir. 1990) ( [W]e have consistently held that leave to amend should be granted freely. ). The Third Circuit -6-

12 Case 3:09-cv FLW-LHG Document 76-2 Filed 10/04/13 Page 12 of 21 PageID: 1337 has gone so far as to recognize the existence of a general presumption in favor of allowing a party to amend pleadings. Boileau v. Bethlehem Steel Corp., 730 F.2d 929, 938 (3d Cir. 1984). This liberal approach ensures that a particular claim will be decided on the merits rather than on technicalities. Dole, 921 F.2d at 487. B. Courts Deny Amendment Only in Limited Circumstances That Do Not Apply In This Case. The proposed Third Amended Complaint only seeks to amend the current complaint by proposing the substitution of three new lead plaintiffs who will adequately represent the entire putative class, and who are prepared to execute their fiduciary responsibilities on behalf of the entire class. 5 No other modifications whatsoever to the Complaint are proposed. A district court may deny leave to amend only where plaintiffs delay in seeking the amendment is undue, made in bad faith, prejudicial to the opposing party, or fails to cure the jurisdictional defect. Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F2d 874, 886 (3d Cir. 1992); see also Foman v. Davis, 371 U.S. 178, 182 (1962) (holding that it is an abuse of discretion to deny leave to amend absent a clear or declared reason of delay, bad faith, prejudice, or a repeated failure to cure a problem with the complaint); Cornell & Co. v. Occupational Safety & 5 See Greenfield v. Villager Indus., Inc., 483 F.2d 824, 832 (3d Cir. 1973) (stating,... in addition to the normal obligations of an officer of the court, and as counsel to parties to the litigation, class counsel possess, in a very real sense, fiduciary obligations to those not before the court. ). -7-

13 Case 3:09-cv FLW-LHG Document 76-2 Filed 10/04/13 Page 13 of 21 PageID: 1338 Health Review Comm n, 573 F.2d 820, 823 (3d Cir.1978) ( prejudice to the nonmoving party is the touchstone for the denial of an amendment. ); Wright, Miller & Kane, 6A Fed.Prac. & Proc.Civ. 2d 1495 (3d ed.) (denial of leave to amend is appropriate only where the objecting party [is] put to some serious disadvantage. ). The non-moving party bears the burden not just of claiming prejudice but of actually showing substantial or undue prejudice. Heyl & Paterson International, Inc. v. F.D. Rich Housing, Inc., 663 F.2d 419, 426 (3d Cir.1981). Significantly for this motion, courts do not find prejudice if the amendment plaintiff seeks would not alter the claims originally asserted in any way, [and] thus no additional burden of defense would fall on defendants. Kiser v. General Elec. Corp., 831 F.2d 423 (3d Cir. 1987) at 428 (internal citations omitted). C. Defendant will not be Prejudiced or Disadvantaged In Any Way Since No New Claims Are Asserted, And Because Hart s Discovery Has Not Yet Commenced, But, In Any Case, Discovery In This Action Will Be Averted If the Settlement Is Confirmed. In this action, the Initial Case Management Conference had previously been postponed from October 1, 2013 until October 28, As such, a Joint Discovery Plan has not yet even been filed, and no discovery has been commenced following the Third Circuit s decision remanding the action for class certification -8-

14 Case 3:09-cv FLW-LHG Document 76-2 Filed 10/04/13 Page 14 of 21 PageID: 1339 discovery. 6 Further, Proposed Class Counsel acted with expediency to file this Motion immediately upon learning of the issues warranting the request made herein. Given that the Defendant will not experience any prejudice, and given that the currently named Plaintiff will maintain his ability to recover through the proposed settlement, or as a future opt-out, a meaningful basis exists to grant this motion, and thereby permit the new proposed class representatives to move forward with advancing the historic settlement on behalf of all putative class members, together with counsel that has demonstrated their ability and competence to work together with other plaintiffs counsel in other related putative class actions and with the Defendant to bring about a significant resolution on behalf of so many individuals. 6 Significant discovery has, however, been conducted in the related Keller/O Bannon case in the Northern District of California, and Defendant has participated in extensive discovery which has enabled the parties to work together in arriving at a settlement at this stage. See Manual for Complex Litigation (Fourth) at ( [I]t is important to have an informed understanding of the dynamics of the settlement discussions and negotiations, the participants, and the steps taken by those negotiating on the plaintiff s behalf to protect the procedural and substantive rights and interests of those whose claims they propose to settle. ); see also In re Prudential Ins. Co. America Sales Prac. Litig., 148 F.3d 283, 319 (3d Cir. 1998)( The parties adequate appreciation of the merits of the case before negotiating favor the approval of the settlement.). -9-

15 Case 3:09-cv FLW-LHG Document 76-2 Filed 10/04/13 Page 15 of 21 PageID: 1340 II. SINCE COURTS ROUTINELY ALLOW FOR THE SUBSTITUTION OF PLAINTIFFS, LEAVE TO AMEND SHOULD BE GRANTED. As a general matter, Courts routinely allow parties to substitute plaintiffs and amend a complaint as fairness requires. See, e.g., Romero v. ALLSTATE INS. CO., No. 01:3894, 2010 WL , at *3-5 (Jul 28, 2010) (granting plaintiffs motion for leave to amend the complaint and substitute class representative despite defendant s opposition that the substitute class representative would not satisfy the numerosity requirement of Rule 23 and proposed amendments would be prejudicial to defendants); In re Motor Fuel Temp. Sales Pract. Litig., 2009 WL , at *1-3 (D. Kan. Sep. 24, 2009) (granting plaintiffs motion for leave to amend to substitute class representative when current class representative was precluded from fulfilling his responsibilities as a class representative to the putative class). 7 Since fact discovery has not even begun, and since a settlement in 7 Indeed, courts routinely substitute class representatives if a class representative is no longer suitable. See, e.g., In re Herley Indust. Inc. Sec. Litig., 2009 WL at *7 (E.D. Pa. Sept. 30, 2009)(substituting class representative when current representative no longer had standing to sue); Lindley v. Life Investors Ins. Co. of Am., Nos & , 2009 WL , at *4 (N.D. Okla. Aug. 20, 2009) ( If it becomes clear that class certification is appropriate but plaintiff is not a suitable class representative,... a new class representative may be substituted. ); In re Aluminum Phosphide Antitrust Litig., 160 F.R.D. 609, 613 (D. Kan. 1995) ( If it later becomes apparent that certain types of purchasers are not adequately represented by the named representatives, the Court may require substitution or addition of a class representative.... ); Heartland Commc ns, Inc. v. Sprint Corp., 161 F.R.D. 111, 115 (D. Kan. 1995) ( [I]f it later becomes apparent that Partners selling certain types of services are -10-

16 Case 3:09-cv FLW-LHG Document 76-2 Filed 10/04/13 Page 16 of 21 PageID: 1341 principle has been represented to exist, there is no prejudice that will result by the requested substitution of the current class representative. Although the current named representative plaintiff has purported to terminate his attorney-client relationship with Proposed Class Counsel, Hart has no authority to terminate counsel on behalf of the putative class, particularly where, as here, such attempted termination comes after proposed class counsel have invested significant sums of time and money on behalf of the entire class to assist in arriving at a historic settlement that seeks to compensate collegiate football players for the alleged misappropriation of their rights of publicity. For example, in Maywalt v. Parker & Pasley Petroleum Co., 67 F.3d 1072, 1078 (2d Cir. 1995), the district court had denied a motion by the class representative to discharge counsel because it had negotiated a settlement that the representative plaintiff deemed inadequate. The Second Circuit affirmed, stating: The choice between the views of counsel and those of the representatives must rest with the district court. As addressed by the concurring opinion of Judge Adams in In re Corn Derivatives Antitrust Litigation, 748 F.2d 157, (3d Cir. 1984), the obligation of class counsel runs to the class as a whole, although in general class counsel may have personally worked only with the named parties. Id. Significant not adequately represented by the named representatives, the court may require substitution or addition of a class representative.... ). -11-

17 Case 3:09-cv FLW-LHG Document 76-2 Filed 10/04/13 Page 17 of 21 PageID: 1342 prejudice to the putative class may be incurred if current and actively involved Plaintiffs class counsel are disqualified at this late date after Proposed Class Counsel has worked with the plaintiffs lawyers who have been leading the related California class litigation, and after Proposed Class Counsel worked with the Defendant and its counsel to reach the settlement that the putative plaintiff class will soon seek to confirm. Moreover, Proposed Class Counsel has acquired considerable knowledge and a thorough understanding of the complex issues of this litigation and are uniquely suited to proceed with representation of the Class, particularly at this post-settlement stage. III. PROPOSED CLASS COUNSEL HAS DEMONSTRATED GOOD CAUSE TO WITHDRAW ITS APPEARANCE Under R.P.C. 1.16(b), an attorney may withdraw from representation if withdrawal will not materially adversely affect the client, or if good cause exists for withdrawal. See Haines v. Liggett Group, Inc., 814 F. Supp. 414, 422 (D.N.J. 1993); Rusinow v. Kamara, 920 F. Supp. 69, 71 (D.N.J. 1996). Specifically, R.P.C. 1.16(b)(4) states that good cause for withdrawal exists if 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. In addition to R.P.C. 1.16(b), the Court must also consider L. Civ. R which governs the withdrawal of appearance in this District. L. Civ. R provides that, Unless other counsel is substituted, no attorney may -12-

18 Case 3:09-cv FLW-LHG Document 76-2 Filed 10/04/13 Page 18 of 21 PageID: 1343 withdraw an appearance except by leave of Court. Further, after a case has been first set for trial, substitution and withdrawal shall not be permitted except by leave of Court. L. Civ. R When considering a motion for leave to withdraw, the Court should consider: (1) the reasons why the withdrawal is sought; (2) the prejudice withdrawal may cause to the 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. Greig v. Macy s Northeast, Inc., No. 95-cv-1259, 1996 U.S. Dist. LEXIS 22142, at *8 (D.N.J. Nov. 21, 1996) citing Rusinow, 920 F. Supp. at 71 (internal citations omitted). In Greig, the attorney client relationship deteriorated due to a communication breakdown U.S. Dist. LEXIS 22142, at *3. Specifically, plaintiff s counsel s attempts to communicate with plaintiff were unrequited. Id. The Court found that plaintiff s failure to effectively communicate constituted good cause for withdrawal. Id. at *8-9. Specifically, the Court held that the failure to sustain adequate communication resulted in the deterioration of the attorneyclient relationship, caused an irreparable rift between plaintiff and counsel and made it impossible for counsel to effectively prosecute plaintiff s claims. 8 Id. at 8 The Court also noted that in-depth detail of the firm s reasons for withdrawal was unwarranted and would potentially prejudice the plaintiff. The breakdown in communications was a sufficient showing of good cause. Id. at *

19 Case 3:09-cv FLW-LHG Document 76-2 Filed 10/04/13 Page 19 of 21 PageID: 1344 *9-10. Additionally, the Court stated that, although the withdrawal would delay the resolution of the matter, mere delay is an insufficient basis upon which to deny a motion to withdraw. Id. at *11. This case is no different than Greig. As discussed supra, Hart has retained another law firm - without this Court s permission - and refuses to communicate and cooperate with Proposed Class Counsel. Indeed, Hart is refusing to fulfill his obligation of communicating with Proposed Class Counsel, but is also refusing to fulfill his obligations as a proposed class representative. See R.P.C. 1.16(b)(4); Greig, 1996 U.S. Dist. LEXIS 22142, at *8-9 (holding that plaintiff s failure to fulfill obligation of communicating with counsel is good cause for counsel s motion to withdraw). As such, Hart s refusal to fulfill his obligations and failure to effectively communicate has resulted in a deterioration of the attorney-client relationship and an irreparable rift between [Proposed Class Counsel] and [Hart]. Greig, 1996 U.S. Dist. LEXIS 22142, at *9, *10. As such, Proposed Class Counsel has demonstrated good cause for its motion for leave to withdraw. CONCLUSION For the reasons set forth above, Proposed Class Counsel respectfully requests that the Court grant its motion for leave to replace the current named class representative with proposed representatives Myron Rolle, Jack Corcoran, and Jackson Rice, and to thereby permit the filing of the proposed Third Amended -14-

20 Case 3:09-cv FLW-LHG Document 76-2 Filed 10/04/13 Page 20 of 21 PageID: 1345 Complaint, or alternatively, that the Court require the parties to appear for an in camera conference prior to deciding the instant motion, and further permits Proposed Class Counsel to withdraw solely from representing Hart, individually. Dated: October 4, 2013 TIMOTHY MCILWAIN, ATTORNEY AT LAW, LLC THE LANIER LAW FIRM, P.C. By: /s/ Timothy McIlwain By: /s/ W. Mark Lanier Timothy J. McIlwain W. Mark Lanier (pro hac vice) 89 River Street #1538 Eugene R. Egdorf (pro hac vice) Hoboken, New Jersey Tel: (877) Arthur Miller (pro hac vice) Fax: (609) FM 1960 West Houston, Texas Tel: (713) Fax: (713) Plaintiffs Co-Counsel and Proposed Co-Lead Class Counsel Plaintiffs Co-Counsel and Proposed Co-Lead Class Counsel -15-

21 Case 3:09-cv FLW-LHG Document 76-2 Filed 10/04/13 Page 21 of 21 PageID: 1346 Certificate of Service I, Timothy McIlwain, hereby certify that on October 4, 2013, I electronically filed the foregoing Motion with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the addresses denoted on the Electronic Mail list. I further certify that I have sent a copy of the foregoing Motion via both U.S. Mail and to Keith A. McKenna, counsel for Ryan Hart in his individual capacity. Dated: October 4, 2013 TIMOTHY MCILWAIN, ATTORNEY AT LAW, LLC By: /s/ Timothy McIlwain Timothy J. McIlwain Attorney@mcilwainlaw.com 89 River Street #1538 Hoboken, New Jersey Tel: (877) Fax: (609) Plaintiffs Co-Counsel and Proposed Co-Lead Class Counsel -16-