Collins v. Commissioner of Social Security

Filing 22

ORDER GRANTING 20 Plaintiff's Counsel's Motion to Withdraw as Attorney of Record; ORDER GRANTING an Extension of Time for the Filing of Plaintiff's Opening Brief to No Later than 3/10/2009; ORDER DIRECTING the Clerk to Update the Docket and to Serve this Order on Plaintiff Himself at the Address Specified in this Order, Signed by Magistrate Judge Sandra M. Snyder on 1/23/2009. (Arellano, S.)

1 2 3 4 5 6 7 8 BILLY COLLINS, 9 v. 10 MICHAEL J. ASTRUE, 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13 14 15 16 17 Plaintiff is proceeding in forma pauperis and with counsel Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) 1:08-cv-00476-SMS ORDER GRANTING PLAINTIFF'S COUNSEL'S MOTION TO WITHDRAW AS ATTORNEY OF RECORD (DOC. 20) ORDER GRANTING AN EXTENSION OF TIME FOR THE FILING OF PLAINTIFF'S BRIEF TO NO LATER THAN MARCH 10, 2009 ORDER DIRECTING THE CLERK TO UPDATE THE DOCKET AND TO SERVE THIS ORDER ON PLAINTIFF HIMSELF AT THE ADDRESS SPECIFIED IN THIS ORDER

U N I T E D STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

18 with an action seeking judicial review of a final decision of the 19 Commissioner of Social Security (Commissioner) denying 20 Plaintiff's application for benefits. The matter has been 21 referred to the Magistrate Judge for all proceedings, including 22 the entry of final judgment, pursuant to 28 U.S.C. § 636(c), Fed. 23 R. Civ. P. 73(b), and Local Rule 73-301. 24 Pending before the Court is the motion of Marc V. Kalagian

25 of the law offices of Rohlfing and Kalagian, LLP, to withdraw as 26 attorney of record for Plaintiff, which was served on Defendant 27 and Plaintiff and filed on December 11, 2008. The motion included 28 a notice and motion to withdraw as attorney of record, a 1

1 supporting memorandum, and a declaration. The Court issued a 2 briefing order that was served on Plaintiff on December 15, 2008, 3 setting deadlines for the filing of any opposition by Plaintiff 4 and reply thereto; no opposition was filed, and Defendant has not 5 responded. The Court has reviewed all the documents submitted in 6 connection with the motion. 7 8 I. The Motion to Withdraw as Attorney of Record Movant Marc V. Kalagian states that after undertaking

9 representation of Plaintiff in February 2008, and reviewing the 10 administrative record, he informed Plaintiff in August 2008 in 11 writing of his opinion that he could not pursue the case on 12 Plaintiff's behalf, and he informed Plaintiff that if Plaintiff 13 disagreed with counsel's opinion, Plaintiff could sign a 14 substitution of attorneys and seek other counsel. As of the time 15 the motion was filed, Plaintiff had neither advised Kalagian of 16 the retention of alternate counsel or authorized counsel to 17 dismiss the action. (Decl. of Kalagian, ¶¶ 2-4.) 18 On December 11, 2008, counsel mailed a copy of the motion to

19 Plaintiff at Plaintiff's last-known address, and he has submitted 20 to the Court documentation of Plaintiff's receipt of the motion. 21 (Decl. ¶ 6, Ex. 1.) Plaintiff's last known and current address is 22 2609 Westholme Blvd., Apt. B, Bakersfield, California 93309. The 23 Court finds that Plaintiff's address has been established within 24 the meaning of Local Rule 83-182(d). The Court further finds that 25 withdrawing counsel gave Plaintiff adequate notice of the instant 26 motion. 27 The grounds of the motion are that after diligent research

28 of the issues, counsel has formed the opinion that he cannot 2

1 pursue the matter on Plaintiff's behalf and that to do so could 2 subject Plaintiff and counsel to sanctions under Rule 11. (Decl. 3 of Kalagian ¶ 5.) 4 Local Rule 83-182 provides that an attorney may request

5 withdrawal if grounds exist pursuant to the Rules of Professional 6 Conduct of the State Bar of California. Cal. Rules of Prof. 7 Conduct, Rule 3-700(C)(1)(a) provides for withdrawal with the 8 permission of a tribunal if the client insists upon presenting a 9 claim or defense that is not warranted under existing law and 10 cannot be supported by good faith argument for an extension, 11 modification, or reversal of existing law. Fed. R. Civ. P. 12 11(b)(1) provides that by presenting to the Court a paper, an 13 attorney is certifying that to the best of the person's 14 knowledge, information, and belief, formed after an inquiry 15 reasonable under the circumstances, that the claims, defenses, 16 and other legal contentions therein are warranted by existing law 17 or by a nonfrivolous argument for the extension, modification, or 18 reversal of existing law or the establishment of new law. Cal. 19 Rules Prof. Conduct, Rule 3-700(C)(6) permits withdrawal if the 20 member believes in good faith in a proceeding pending before a 21 tribunal that the tribunal will find the existence of good cause 22 for withdrawal. 23 The Court finds and concludes that counsel has established

24 grounds for withdrawal. The motion to withdraw will be granted. 25 26 II. Extension of Time to File Plaintiff's Opening Brief Local Rule 83-182(d) provides, "Leave to withdraw may be

27 granted subject to such appropriate conditions as the Court deems 28 fit." Counsel has requested that the Court grant Plaintiff time 3

1 to search for counsel and extend the time for filing Plaintiff's 2 opening brief. Plaintiff's opening brief was due on January 21, 3 2009; thus, it is currently overdue. 4 In order to permit Plaintiff to obtain counsel and to file

5 an opening brief, the Court will extend the deadline for its 6 filing until March 10, 2009. 7 The Court notes that upon counsel's withdrawal, Plaintiff

8 will be proceeding pro se and will be responsible for the timely 9 prosecution of the action even if Plaintiff fails to obtain new 10 counsel. A failure to comply with an order of the Court, 11 including the deadline for the filing of Plaintiff's opening 12 brief, will result in sanctions, including dismissal of this 13 action. Because Plaintiff is now proceeding pro se, the Court 14 will by separate order inform Plaintiff of requirements 15 concerning Social Security cases in this Court. 16 17 18 III. Disposition Accordingly, it IS ORDERED that 1) The motion of Plaintiff's counsel, Marc V. Kalagian, to

19 withdraw as attorney of record IS GRANTED; and 20 2) Plaintiff's opening brief SHALL BE FILED no later than

21 March 10, 2009; and 22 3) The Clerk SHALL UPDATE THE DOCKET to reflect Plaintiff's

23 pro se status and Plaintiff's address of 2609 Westholme Blvd., 24 Apt. B, Bakersfield, California 93309 and SHALL SERVE this order 25 upon Plaintiff at that address. 26 IT IS SO ORDERED. 27 Dated: icido3 28 January 23, 2009 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE

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