McCoy v. Philadelphia Insurance Company

Filing 24

ORDER GRANTING UNOPPOSED MOTION TO WITHDRAW AND CONTINUING THE MANDATORY SCHEDULING CONFERENCE, signed by Magistrate Judge Sheila K. Oberto on 11/17/2020. Initial Scheduling Conference currently set for 12/1/2020 is continued to 2/4/2021 at 09:45 AM in Courtroom 7 (SKO) before Magistrate Judge Sheila K. Oberto.(Kusamura, W)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9

MAURICE MCCOY,
Plaintiff,

10
11

Case No. 1:20-cv-01329-NONE-SKO
ORDER GRANTING UNOPPOSED
MOTION TO WITHDRAW AND
CONTINUING THE MANDATORY
SCHEDULING CONFERENCE

v.

12
PHILADELPHIA INSURANCE COMPANY,
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

(Doc. 17)

Defendant.
_____________________________________/
On October 13, 2020, Jerome R. Bowen, Esq. (“Attorney Bowen”), attorney for Plaintiff
Maurice McCoy (“Plaintiff”), filed his motion to withdraw as counsel of record (the “Motion”).
(Doc. 17.) By minute order entered October 14, 2020, the Court directed Plaintiff and Defendant
Philadelphia Insurance Company (“Defendant”) to file their responses to the motion by November
6, 2020. (Doc. 18.) Defendant timely filed a statement of non-opposition (Doc. 22), and Plaintiff
has not responded. The matter is therefore deemed unopposed and submitted on the papers.
Upon consideration of the Motion and supporting papers, and for the reasons set forth
below, the Motion will be granted, and the Mandatory Scheduling Conference continued.
I.

BACKGROUND

On March 24, 2020, Plaintiff initiated this action in the Eighth Judicial District Court of
Clark County, Nevada. (See Doc. 1-3.) Defendant removed the action to the United States
District Court for the District of Nevada on May 15, 2020. (See Doc. 1.) In the operative
complaint, Plaintiff alleges that Defendant wrongfully denied his insurance claim arising out of

1

the theft and recovery of his motor vehicle. (See Doc. 1-3.)

2

On September 17, 2020, the District of Nevada granted Defendant’s unopposed motion to

3

transfer venue to this Court pursuant to 28 U.S.C. §1404(a), and this case was transferred to this

4

Court on September 18, 2020. (See Docs. 11, 12.) Upon transfer of this action, the Court set a

5

Mandatory Scheduling Conference for December 1, 2020. (See Doc. 13.)

6
7

II.
A.

DISCUSSION

Motion to Withdraw

8

Attorney Bowen has been the attorney of record for Plaintiff since June 2018. (Doc. 17 at

9

2.) By correspondence dated June 2, 2020, Attorney Bowen notified Plaintiff of his intention to

10

withdraw if Defendant’s motion to transfer was granted. (Id. at 3.) Attorney Bowen “seeks to

11

withdraw because of a communication breakdown and/or lack of cooperation.” (Id. at 2.) He

12

states that because he is not licensed in the state of California and Plaintiff has not provided any

13

communication to proceed pro hac vice or to retain an alternative California-licensed attorney,

14

Attorney Bowen cannot proceed as an attorney in this matter without subjecting himself to

15

possible violations and sanctions. (Id. at 5.) Attorney Bowen further indicates that “withdrawal

16

can be accomplished without material adverse effect” on the parties, as “there is no currently

17

scheduled trial and/or hearing date” and therefore will be no delay in the prosecution of this

18

matter. (Id.)

19

1.

20

Withdrawal of attorney is governed by Local Rule 182 of the Local Rules of the United

21

States District Court for the Eastern District of California (“Local Rules”) and the Rules of

22

Professional Conduct of the State Bar of California (“Rules of Professional Conduct”). See E.D.

23

Cal. L.R. 182(d). Local Rule 182(d) provides as follows:

24
25
26
27
28

Legal Standard

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 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. Withdrawal as attorney is governed by the Rules of Professional
Conduct of the State Bar of California, and the attorney shall conform to the
2

requirements of those Rules. The authority and duty of the attorney shall continue
until relieved by order of the Court issued hereunder. Leave to withdraw may be
granted subject to such appropriate conditions as the Court deems fit.

1
2
3

Id.

4

Rule of Professional Conduct 1.16(b)(4) provides that an attorney may request permission

5

to withdraw if “the client by other conduct renders it unreasonably difficult for the lawyer to carry

6

out the representation effectively,” and subsection (b)(9) of Rule 1.16 permits withdrawal where

7

“a continuation of the representation is likely to result in a violation of these rules or the State Bar

8

Act.” Rule 1.16(d) further instructs that “[a] lawyer shall not terminate a representation until the

9

lawyer has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the

10

client, such as giving the client sufficient notice to permit the client to retain other [attorney(s)],

11

and complying with paragraph (e).”1 In the Ninth Circuit, the Rules of Professional Conduct are

12

interpreted according to California state law. Williams v. Troehler, No. 1:08–cv–01523–OWW–

13

GSA, 2010 WL 11570438, at *2 (E.D. Cal. June 23, 2010) (citing Image Technical Services, Inc.

14

v. Eastman Kodak Co., 820 F. Supp. 1212, 1215 (N.D. Cal. 1993)). The decision to grant or deny

15

a motion to withdraw as attorney is committed to the sound discretion of the trial court. Id. (citing

16

LaGrand v. Stewart, 133 F.3d 1253, 1269 (9th Cir. 1998)); Estate of Falco, 188 Cal. App. 3d

17

1004, 1014 (1987) (“[A] trial court should have broad discretion in allowing attorneys to

18

withdraw”).

19

2.

Analysis

20

As an initial matter, Attorney Bowen has complied with Local Rule 182. He filed proofs

21

of service demonstrating that he mailed a copy of the motion and the Court’s minute order setting

22

forth the briefing schedule to Plaintiff at his last known addresses. (Doc. 17 at 6; Doc. 19.)

23

Attorney Bowen also set forth his efforts to notify Plaintiff of the motion to withdraw, including

24

by written correspondence on June 2, 2020.

25

Next, the Motion demonstrates that Attorney Bowen’s ability to provide effective

26

representation has become unreasonably difficult. Plaintiff’s failure to communicate and lack of

27

cooperation with Attorney Bowen is a proper ground for withdrawing under Rule of Professional

28

1

Paragraph (e) of Rule 1.16 pertains to returning property and funds to clients.

3

1

Conduct 1.16(b)(4). See Williams, 2010 WL 11570438, at *2 (“Some courts have found that a

2

client’s inability to get along and cooperate with counsel may justify an attorney’s withdrawal.”

3

(listing cases finding failure to communicate or cooperate is grounds for withdrawal)).

4

addition, because Attorney Bowen is not a member of the State Bar of California, his continued

5

representation of Plaintiff in the absence of Plaintiff’s cooperation would violate the State Bar Act,

6

the Rules of Professional Conduct, and this Court’s Local Rules.

In

7

The Court also finds Attorney Bowen have has reasonable steps to avoid reasonably

8

foreseeable prejudice to Plaintiff’s rights in accordance with Rule of Professional Conduct 1.16(d).

9

Specifically, Attorney Bowen afforded Plaintiff sufficient notice to permit him to retain other

10

counsel (or to cooperate in seeking pro hac vice status for Attorney Bowen), as he informed

11

Plaintiff of his intent to withdraw over four months prior to filing the Motion.

12

Finally, with respect to whether Defendant will be prejudiced by the motion to withdrawal,

13

Defendant has filed a statement of non-opposition to the motion. (See Doc. 22.) The Court notes

14

that it has not yet held a Mandatory Scheduling Conference in this case and no schedule has been

15

yet. Accordingly, the Court finds any prejudice to Defendant is negligible.

16
17

Accordingly, the Motion will be granted.
B.

Continuance of the Mandatory Scheduling Conference

18

Local Rule 182(d) provides that “[l]eave to withdraw may be granted subject to such

19

appropriate conditions as the Court deems fit.” The Mandatory Scheduling Conference in this

20

case is currently set for December 1, 2020. (See Doc. 13.) To allow time for Plaintiff to retain a

21

new attorney if he chooses to do so, the Mandatory Scheduling Conference is CONTINUED to

22

February 4, 2021, at 9:45 a.m. before Magistrate Judge Sheila K. Oberto. The parties SHALL

23

file their joint scheduling report by no later than January 28, 2021.

24

The Court notes that upon his attorney’s withdrawal, Plaintiff will be proceeding pro se

25

and will be responsible for the timely prosecution of the action even if he fails to obtain a new

26

attorney. A failure to comply with an order of the Court may result in sanctions, including

27

dismissal of this action. Because Plaintiff is now proceeding pro se, the Court will issue a

28

subsequent order informing Plaintiff of the requirements of civil cases pending before this Court.
4

1

III.

CONCLUSION AND ORDER

2

For the reasons stated above, it IS HEREBY ORDERED that:

3

1.

The motion to withdraw as counsel of record (Doc. 17) is GRANTED;

4

2.

Attorney Bowen SHALL serve a copy of this order on Plaintiff via mail and

5

SHALL inform Plaintiff that he has withdrawn. Within two (2) days of the date of

6

the order, Attorney Bowen SHALL file a declaration indicating proof of service;

7

3.

8

The Clerk of Court is ORDERED to RELIEVE Jerome R. Bowen, Esq. as attorney
for Plaintiff;

9

4.

10

The Mandatory Scheduling Conference is CONTINUED to February 4, 2021, at
9:45 a.m. before Magistrate Judge Sheila K. Oberto, as set forth above; and

11

5.

The Clerk SHALL UPDATE THE DOCKET to reflect Plaintiff’s pro se status and
Plaintiff’s address (see Doc. 17).

12
13
14
15
16

IT IS SO ORDERED.
Dated:

November 17, 2020

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
5

.