Taylor v. FedEx Freight, Inc.
ORDER Granting Marilyn Smith's 80 Motion to Withdraw as Counsel, signed by District Judge Dale A. Drozd on 10/13/2016. (Marilyn Smith's 80 motion to withdraw as counsel is granted; the Clerk of the Court is directed to terminate attorney Smith as the counsel of record for judgment creditor Nancy A. Underwood on the docket of this action; and the hearing on the motion to withdraw currently scheduled for October 18, 2016, at 9:30 a.m., is vacated.) (Gaumnitz, R)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ROY D. TAYLOR, on behalf of himself
and all others similarly situated,
FEDEX FREIGHT, INC., an Arkansas
corporation; DOES 1 through 10, inclusive,
ORDER GRANTING MARILYN SMITH’S
MOTION TO WITHDRAW AS COUNSEL
(Doc. No. 80)
On August 26, 2016, Nancy A. Underwood (formerly Westrup) filed a notice of lien,
regarding attorneys’ fees awarded to plaintiff’s attorney R. Duane Westrup, and related entities,
in this class action. (Doc. No. 59.) Attorney Marilyn Smith appeared as counsel of record for the
creditor, Ms. Underwood. However, on August 27, 2016, Ms. Underwood passed away.
Courtney Finney, the daughter of Ms. Underwood and Mr. Westrup, was appointed successor in
interest for Ms. Underwood in the relevant marital proceeding. (Doc. No. 81-1 at 4, 16-17.) She
is also the sole beneficiary to the Nancy Ann Westrup Family Trust, dated October 15, 2015,
which became irrevocable at the time of Ms. Underwood’s death. (Doc. No. 81-1 at 3.) On
September 22, 2016, Finney filed a notice with this court representing that she has consulted an
attorney and wishes to withdraw the previously filed lien. (Doc. No. 81-1 at 2–9.) Accordingly, on
October 12, 2016, in granting final approval of a class action settlement, the court ordered that the lien
be released. (Doc. No. 83.)
Before the court is attorney Smith’s motion to withdraw as counsel of record for Ms.
Underwood, filed on September 14, 2016. (Doc. No. 80.) As a general rule, the authority of an
attorney to act for his or her client ends with the client’s death. Vapnek et al., California Practice
Guide: Professional Responsibility (The Rutter Group 2016), at ¶ 10:192. See also, Cal. Civ.
Code § 2356. Therefore, pursuant to Local Rule 182 and the California Rules of Professional
Conduct, Smith’s motion to withdraw as counsel is hereby granted.
1) Marilyn Smith’s motion to withdraw as counsel (Doc. No. 80) is granted;
2) The Clerk of the Court is directed to terminate attorney Smith as the counsel of record
for judgment creditor Nancy A. Underwood on the docket of this action; and
3) The hearing on the motion to withdraw currently scheduled for October 18, 2016, at
9:30 a.m., is vacated.
IT IS SO ORDERED.
October 13, 2016
UNITED STATES DISTRICT JUDGE
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