Taylor v. FedEx Freight, Inc.

Filing 84

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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROY D. TAYLOR, on behalf of himself
and all others similarly situated,
Plaintiff,

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v.

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FEDEX FREIGHT, INC., an Arkansas
corporation; DOES 1 through 10, inclusive,

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No. 1:13-cv-01137-DAD-BAM

ORDER GRANTING MARILYN SMITH’S
MOTION TO WITHDRAW AS COUNSEL
(Doc. No. 80)

Defendants.

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On August 26, 2016, Nancy A. Underwood (formerly Westrup) filed a notice of lien,

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regarding attorneys’ fees awarded to plaintiff’s attorney R. Duane Westrup, and related entities,

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in this class action. (Doc. No. 59.) Attorney Marilyn Smith appeared as counsel of record for the

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creditor, Ms. Underwood. However, on August 27, 2016, Ms. Underwood passed away.

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Courtney Finney, the daughter of Ms. Underwood and Mr. Westrup, was appointed successor in

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interest for Ms. Underwood in the relevant marital proceeding. (Doc. No. 81-1 at 4, 16-17.) She

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is also the sole beneficiary to the Nancy Ann Westrup Family Trust, dated October 15, 2015,

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which became irrevocable at the time of Ms. Underwood’s death. (Doc. No. 81-1 at 3.) On

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September 22, 2016, Finney filed a notice with this court representing that she has consulted an

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attorney and wishes to withdraw the previously filed lien. (Doc. No. 81-1 at 2–9.) Accordingly, on

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October 12, 2016, in granting final approval of a class action settlement, the court ordered that the lien

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be released. (Doc. No. 83.)

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Before the court is attorney Smith’s motion to withdraw as counsel of record for Ms.

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Underwood, filed on September 14, 2016. (Doc. No. 80.) As a general rule, the authority of an

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attorney to act for his or her client ends with the client’s death. Vapnek et al., California Practice

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Guide: Professional Responsibility (The Rutter Group 2016), at ¶ 10:192. See also, Cal. Civ.

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Code § 2356. Therefore, pursuant to Local Rule 182 and the California Rules of Professional

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Conduct, Smith’s motion to withdraw as counsel is hereby granted.

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Accordingly,

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1) Marilyn Smith’s motion to withdraw as counsel (Doc. No. 80) is granted;

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2) The Clerk of the Court is directed to terminate attorney Smith as the counsel of record

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for judgment creditor Nancy A. Underwood on the docket of this action; and

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3) The hearing on the motion to withdraw currently scheduled for October 18, 2016, at

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9:30 a.m., is vacated.
IT IS SO ORDERED.
Dated:

October 13, 2016
UNITED STATES DISTRICT JUDGE

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