Armenta v. Commissioner of Social Security

Filing 14

ORDER Granting 11 Law Offices of Rohlfing & Kalagian, LLP, Leave to Withdraw as Counsel for Plaintiff, signed by Magistrate Judge Sandra M. Snyder on 12/21/11. Marc V Kalagian terminated. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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FRANK ARMENTA, JR.,

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Plaintiff,

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CASE NO. 1:11-cv-00558-SMS
ORDER GRANTING LAW OFFICES OF
ROHLFING & KALAGIAN, LLP, LEAVE TO
WITHDRAW AS COUNSEL FOR PLAINTIFF

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,

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Defendant.
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(Doc. 11)
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On October 13, 2011, the Law Offices of Rohlfing & Kalagian, LLP, counsel for
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Plaintiff, moved to withdraw as counsel, stating that it has been unable to obtain Plaintiff’s
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consent for withdrawal and that it believed further prosecution of the claim might violate
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F.R.Civ.P. 11. The Court heard the motion on December 21, 2011. Marc V. Kalagian appeared
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as counsel to Plaintiff; Odell Grooms represented the Commissioner. Plaintiff Frank Armenta,
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Jr., accompanied by his sister, Michelle Allread, appeared on his own behalf. Having considered
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the matters addressed at the hearing and all written materials submitted, the Court grants
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counsel’s motion to withdraw.
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Federal Rule of Civil Procedure 11(b) provides that, by presenting pleadings to the Court,
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“an attorney or unrepresented party certifies that to the best of the person’s knowledge,
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information, and belief, formed after an inquiry reasonable under the circumstances:
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1.
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[the claim] is not being presented for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of litigation;

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the claims, defenses, and other legal contentions are warranted by existing law or
by a non-frivolous argument for extending, modifying, or reversing existing law
or for establishing new law;

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the factual contentions have evidentiary support or, if specifically so identified,
will likely have reasonable support after a reasonable opportunity for further
investigation or discovery; and

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the denials of factual contentions are warranted on the evidence or, if specifically
so identified, are reasonably based on belief or lack of information.”

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Violations of the certification may result in various sanctions set forth in F.R.Civ.P.
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11(c). For this reason, having concluded that it cannot make the certifications set forth in Rule
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11(b), counsel seeks to withdraw from representation in this case.
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Local Rule 83-182(d) provides, in pertinent part, “Withdrawal as attorney is governed by
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the Rules of Professional Conduct of the State Bar of California, and the attorney shall conform
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to the requirements of those Rules. California’s rules require the notice of motion and
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declaration to be served on the client and all other parties who have appeared in the case. CRC
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3.1362(d). The Declaration of attorney Marc V. Kalagian as well as the proof of service of the
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motion to withdraw as counsel (Doc. 11) document that the Law Offices of Rohlfing & Kalagian,
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LLP, has served all parties, including Plaintiff, with all required documents.
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Accordingly, the Court hereby ORDERS
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1.

The motion by the Law Offices of Rohlfing & Kalagian, LLP, to withdraw as

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counsel for Plaintiff is hereby granted.
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2.

Law Offices of Rohlfing & Kalagian, LLP, shall serve Plaintiff with a copy of the

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order within ten days of this order. A copy of the order shall also be mailed to
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Michelle Allread, 1719 Ashcroft Avenue, Clovis, California 93611.
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3.

Law Offices of Rohlfing & Kalagian, LLP, shall send the agency record and all

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other documents composing Plaintiff’s file to Plaintiff, in care of Michelle
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Allread, within ten days of this order.
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4.

Plaintiff may elect to proceed with this case in propria persona (representing

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himself) or may elect to retain other counsel.
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5.

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The scheduling order is amended to provide that Plaintiff’s opening brief shall be
due on or before February 29, 2012.

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6.

In the event the Plaintiff decides not to proceed with his case, he may file a

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motion with the Court for dismissal of the case. If, on March 1, 2012, Plaintiff

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has neither filed an opening brief nor requested an extension of time in which to

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file his opening brief, this Court may dismiss this case for failure to prosecute

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without further notice to Plaintiff.

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IT IS SO ORDERED.
Dated:
icido3

December 21, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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