Machuca v. County of Kern, et al.

Filing 23

ORDER GRANTING 18 the Motion of Attorney Mgdesyan and His Firm to Withdraw as Counsel of Record for Plaintiff, signed by Magistrate Judge Jennifer L. Thurston on 8/10/2017. (Hall, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JORGE MACHUCA, Plaintiff, 12 v. 13 14 COUNTY OF KERN, et al., Defendants. 15 16 ) ) ) ) ) ) ) ) ) ) Case No.: 1:16-cv-01497 DAD JLT ORDER GRANTING THE MOTION OF ATTORNEY MGDESYAN AND HIS FIRM TO WITHDRAW AS COUNSEL OF RECORD FOR PLAINTIFF (Doc. 18) 17 The attorney for the plaintiff seeks to withdraw from his representation because Mr. Machuca 18 has failed to remain in contact with him and has failed to respond to letters seeking an opportunity to 19 discuss with him claims that the case is Heck-barred. Mr. Machuca has failed to respond to counsel 20 and has failed to respond to the motion to withdraw. For the reasons set forth below, the motion to 21 withdraw is GRANTED. 22 I. Legal Standard 23 Whether an attorney may withdraw from a client’s representation is governed by the Rules of 24 Professional Conduct of the State Bar of California and the Local Rules of the United States District 25 Court, Eastern District of California. See LR 182. The withdrawal of representation is permitted 26 under the Rules of Professional Conduct if a client “renders it unreasonably difficult for the member to 27 carry our employment effectively.” Cal. R.P.C. 3-700(C)(1)(d). Local Rule 182(d) provides: 28 Unless otherwise provided herein, an attorney who has appeared may not withdraw leaving the client in propria persona without leave of court upon noticed motion and 1 2 notice to the client and all other parties who have appeared. The attorney shall provide an affidavit stating the current or last known address or addresses of the client and the efforts made to notify the client of the motion to withdraw. 3 Id. Likewise, California’s Rules require the notice of motion and declaration to be served on the client 4 and other parties who have appeared in the case. CRC 3.1362(d). 1 5 The decision to grant withdrawal is within the discretion of the Court, and leave “may be 6 granted subject to such appropriate conditions as the Court deems fit.” LR 182; see also Canandaigua 7 Wine Co., Inc. v. Moldauer, 2009 WL 89141, at *1 (E.D. Cal. Jan. 14, 2009) (“The decision to grant or 8 deny counsel’s motion to withdraw is committed to the discretion of the trial court.”). Factors the 9 Court may consider include: (1) the reasons for withdrawal, (2) prejudice that may be caused to the 10 other litigants, (3) harm caused to the administration of justice; and (4) delay to the resolution of the 11 case caused by withdrawal. Canandaigua Wine Co., 2009 WL 89141, at *1. 12 II. Discussion and Analysis 13 Mr. Mgdesyan asserts that he received correspondence from defense counsel supporting a 14 claim that the litigation is Heck barred. (Doc. 18-1 at 2; Doc. 18-2) Along with this, the defense 15 propounded requests for admission related to the issue. His associate contacted the plaintiff to set an 16 appointment to discuss the matter but the plaintiff missed the appointment but rescheduled for a 17 different day. Doc. 18-2 at 2. Though the firm “continued to speak with Plaintiff and discuss the 18 documents received” from defense counsel, in June 2017, the plaintiff cut off all contact. Id. at 3. On 19 two occasions, the firm sent certified letters to the plaintiff at his address asking for his response and 20 telling him that if he did not, the firm would withdraw from his representation. Id. Mr. Machuca did 21 not respond. Id. 22 Mr. Mgdesyan filed his motion to withdraw on July 6, 2017 (Doc. 18) and served the plaintiff 23 notice of the motion via first class mail to his last known address and at his post office box at the same 24 time. Id. at 4-5. The plaintiff has not responded to the motion and the defendant has not opposed the 25 motion. A client’s failure to communicate with counsel is a basis to relive an attorney of the 26 representation. See Canandaigua Wine Co., 2009 WL 89141, at *1 citing Whiting v. Lacara, 187 F.3d 27 317, 322–23 (2nd Cir.1999). 28 The plaintiff has had sufficient time to retain substitute counsel, if that is his intention. Likwise, 2 1 it does not appear the defendant would suffer prejudice as a result of the withdrawal. Indeed, it appears 2 the plaintiff may have decided to abandon this litigation entirely. Furthermore, any delay caused by the 3 withdrawal would be minimal and there is little risk of harm to the administration of justice. 4 III. Conclusion and Order 5 Counsel followed the procedural and substantive requirements set forth in the California Rules 6 of Professional Conduct and the Local Rules in filing the motion to withdraw as counsel, and set forth 7 sufficient reasons for the withdrawal. Therefore, the Court is acting within its discretion to grant the 8 motion to withdraw. See LR 182. Accordingly, the Court ORDERS: 9 1. The motion to withdraw (Doc. 28) is GRANTED; 10 2. The Clerk’s Office SHALL TERMINATE George Mgdesyan and the entire 11 Mgdesyan Law Firm as “Attorney to be Noticed” for the plaintiff Jorge Machuca in the 12 Court docket, and update the docket to reflect the plaintiff’s last known contact 13 information as follows: Jorge Machuca PO Box 465 Maricopa, CA 93252 14 15 16 3. No later than September 1, 2017, plaintiff SHALL notify the Court whether he 17 intends to represent himself in this matter or whether he has secured substitute counsel 18 and whether he intends to prosecute this action. 19 Plaintiff is advised that failure to comply with the Local Rules, Federal Rules, or a Court Order, 20 may result in dismissal of this action pursuant to Local Rule 110. 21 22 23 24 IT IS SO ORDERED. Dated: August 10, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 25 26 27 28 3

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