Tulare Golf Course, LLC v. Vantage Tag, Inc. et al

Filing 77

ORDER VACATING Hearing and GRANTING 71 Motion to Withdraw as Attorney for Defendant Vantage Tag, Inc. signed by Magistrate Judge Sheila K. Oberto on 7/3/2024. Attorney Todd A. Wynkoop terminated. (Sant Agata, S)

Download PDF
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 TULARE GOLF COURSE, LLC, Plaintiff, 11 12 Case No. 1:21-cv-00505-JLT-SKO ORDER VACATING HEARING AND GRANTING MOTION TO WITHDRAW AS ATTORNEY FOR DEFENDANT VANTAGE TAG, INC. v. 13 VANTAGE TAG, INC., et al., 14 Defendants. _____________________________________/ 15 (Doc. 71) I. INTRODUCTION 16 17 On June 17, 2024, Todd A. Wynkoop, Esq., of McCormick Barstow, LLP (“Attorney 18 Wynkoop”), attorney for Defendant Vantage Tag, Inc. (“Vantage Tag”), filed a motion to withdraw 19 as Vantage Tag’s attorney, with supporting declaration. (Doc. 71.) By minute order entered June 20 18, 2024, the Court directed the parties to file their responses to the motion and replies in support 21 thereof in accordance with E.D. Cal. Local Rule 230. (Doc. 72.) Defendant U.S. Bank National 22 Association (“U.S. Bank”) timely filed a statement of non-opposition (Doc. 76), and neither Plaintiff 23 Tulare Golf Course, LLC (“Tulare Golf”) nor Vantage Tag have responded (see Docket). The 24 matter is therefore deemed unopposed and submitted on the papers, pursuant to Local Rule 230(g), 25 and the hearing set for July 24, 2024, shall be vacated. 26 Upon consideration of the motion and supporting papers, and for the reasons set forth below, 27 Attorney Wynkoop’s motion to withdraw as counsel for Vantage Tag is granted. 28 1 II. 2 BACKGROUND On March 25, 2021, Tulare Golf initiated this action against Vantage Tag, Arrow Capital 3 Solutions, Inc.1, and U.S. Bank asserting various dispute of contract claims. (Doc. 1 at 1.) Vantage 4 Tag filed a motion to compel arbitration and to dismiss, or in the alternative, to dismiss all claims 5 on July 15, 2021. (Doc. 25.) On March 21, 2023, the Court granted Vantage Tag’s motion to 6 compel arbitration in part as to Tulare and administratively stayed the action “pending the final 7 resolution of arbitration of Tulare [Golf]’s claims against Vantage Tag.” (Doc. 58 at 17.) 8 III. 9 LEGAL STANDARD Under Local Rule 182 of the United States District Court for the Eastern District of 10 California, “an attorney who has appeared may not withdraw leaving the client in propria persona 11 without leave of court upon noticed motion and notice to the client and all other parties who have 12 appeared.” E.D. Cal. L.R. 182(d). The rule further provides: 13 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 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. 14 15 16 17 18 Id. Withdrawal is governed by the California Rules of Professional Conduct (the “Rules of 19 Professional Conduct”). See Nehad v. Mukasey, 535 F.3d 962, 970 (9th Cir. 2008) (applying 20 California Rules of Professional Conduct to attorney withdrawal). Rule of Professional Conduct 21 1.16(b)(4) provides that an attorney may request permission to withdraw where “the client by other 22 conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively.” 23 Cal. Rule Prof. Conduct 1.16(b)(4). Rule of Professional Conduct 1.16(d) further instructs that “[a] 24 lawyer shall not terminate a representation until the lawyer has taken reasonable steps to avoid 25 reasonably foreseeable prejudice to the rights of the client, such as giving the client sufficient notice 26 to permit the client to retain other [attorney(s)], and complying with paragraph (e).”2 27 28 1 Arrow, an intermediary assignee of Vantage Tag who subsequently assigned its rights to U.S. Bank, was dismissed from the action. (Doc. 41; Doc. 42.) 2 Paragraph (e) of Rule 1.16 pertains to returning property and funds to clients. 2 1 The decision to grant or deny a motion to withdraw is within the court’s discretion. McNally 2 v. Eye Dog Found. for the Blind, Inc., No. 1:09-cv-01184-AWI-SKO, 2011 WL 1087117, at *1 3 (E.D. Cal. Mar. 24, 2011) (citation omitted). 4 IV. DISCUSSION 5 A. Attorney Wynkoop is Entitled to Withdraw 6 Attorney Wynkoop states that he has made “repeated attempts to communicate with Vantage 7 Tag to discuss this litigation and the arbitration” but “has been met not only with silence, but actual 8 rejection of voicemail and Federal Express communications.” (Doc. 71-1 at 3. See also Doc. 71-2 9 ¶¶ 10–13.) According to Attorney Wynkoop, “Vantage Tag’s unwillingness to engage with [him] 10 in any way has precluded [him] from making critical decisions necessary to the representation, 11 including with regard to selection of an arbitrator.” (Id. See also Doc. 71-2 ¶ 14.) It is Vantage 12 Tag’s refusal to communicate with Attorney Wynkoop that “makes representation impossible.” 13 (Id.) 14 First, Attorney Wynkoop has complied with this Court’s Local Rule 182(d). He informed 15 Vantage Tag via U.S. Mail of the filing of the motion to withdraw (Doc. 71-2 ¶ 15), and a copy was 16 served on June 19, 2024 (see Doc. 75). His declaration also includes the last known addresses of 17 Vantage Tag, as required. (Doc. 71-2 ¶ 16.) 18 Next, Attorney Wynkoop has demonstrated the substantive requirements for withdrawal 19 under the Rules of Professional Conduct. Attorney Wynkoop states that the withdrawal is the result 20 of “Vantage Tag’s unwillingness to engage with [him] in any way” that, as described, “makes 21 representation impossible.” See Cal. Rule of Prof. Conduct 1.16(b)(4). See also Williams v. 22 Troehler, No. 1:08–cv–01523–OWW–GSA, 2010 WL 11570438, at *2 (E.D. Cal. June 23, 2010) 23 (“Some courts have found that a client’s inability to get along and cooperate with counsel may 24 justify an attorney’s withdrawal.”) (listing cases finding failure to cooperate is grounds for 25 withdrawal). 26 The Court also finds Attorney Wynkoop has taken reasonable steps to avoid reasonably 27 foreseeable prejudice to Vantage Tag’s rights in accordance with Rule of Professional Conduct 28 1.16(d). As set forth above, Attorney Wynkoop provided Vantage Tag with notice of his intent to 3 1 withdraw by serving a copy of the motion and informed it of the opposition and hearing deadlines. 2 (See Doc. 71-2 at 15; Doc. 75.) 3 Finally, with respect to whether the parties will be prejudiced by the withdrawal, the Court 4 observes that Vantage Tag’s co-defendant U.S Bank has filed a notice of non-opposition to the 5 motion (Doc. 76), and neither Plaintiff Tulare Golf nor Vantage Tag responded (see Docket). 6 Furthermore, there will be no resultant delay in the adjudication of this matter as this case is currently 7 stayed pending arbitration. (See Doc. 58.) 8 For the reasons set forth above, the Court shall grant the motion to withdraw. 9 B. Notice to Vantage Tag 10 Defendant Vantage Tag, Inc. is advised that, as a corporate entity, it is required to 11 obtain new counsel, or it will be subject to entry of default judgment. “[A] corporation may 12 appear in the federal courts only through licensed counsel.” Rowland v. Cal. Men’s Colony, 506 13 U.S. 194, 202 (1993); United States v. High Country Broad. Co., 3 F.3d 1244, 1245 (9th Cir. 1993) 14 (per curiam); see also E.D. Cal. L.R. 1983(a); D-Beam Ltd. P’ship v. Roller Derby Skates, Inc., 366 15 F.3d 972, 973-74 (9th Cir. 2004) (“It is a longstanding rule that ‘[c]orporations and other 16 unincorporated associations must appear in court through an attorney.’” (quoting Licht v. Am. W. 17 Airlines (In re Am. W. Airlines), 40 F.3d 1058, 1059 (9th Cir. 1994))). All artificial entities must 18 appear in federal court through counsel. Rowland, 506 U.S. at 202. A corporation’s failure to appear 19 by counsel may result in action by the court to strike the corporation’s pleadings and subject it to 20 entry of default judgment. See Emp. Painters’ Trust v. Ethan Enterprises, Inc., 480 F.3d 993, 998 21 (9th Cir. 2007) (“[W]e have recognized default as a permissible sanction for failure to comply with 22 local rules requiring representation by counsel.”); U.S. v. High Country Broad. Co., Inc., 3 F.3d 23 1244, 1245 (9th Cir. 1993) (affirming default judgment against corporation that failed to comply 24 with court order requiring it to retain counsel); Arvik Platinum, Inc. v. DM & Associates, Inc., 2:1125 CV-01240-GMN, 2012 WL 6021330, at *1-2 (D. Nev. Dec. 3, 2012) (granting motion to strike 26 answer and counterclaim where Defendants, a corporation and an LLC, failed to comply with order 27 requiring them to obtain counsel). 28 As such, Defendant Vantage Tag, Inc. is informed that their failure to obtain counsel may 4 1 result in entry of default judgment against it. See Emp. Painters’ Trust, 480 F.3d at 998; High 2 Country Broad. Co., Inc., 3 F.3d at 1245; Arvik Platinum, Inc., 2012 WL 6021330, at *1-2. 3 Accordingly, Defendant Vantage Tag, Inc. should seek and retain new counsel immediately. 4 V. CONCLUSION AND ORDER Considering Attorney Wynkoop’s reasons for withdrawal, the absence of prejudice to the 5 6 parties, the absence of harm to the administration of justice, and the absence of potential delay, 7 Attorney Wynkoop’s motion to withdraw as attorney for Defendant Vantage Tag, Inc. (Doc. 71) is 8 GRANTED. The hearing set for July 24, 2024, is VACATED. 9 The Clerk of Court is ORDERED to RELIEVE Todd A. Wynkoop, Esq., of McCormick 10 Barstow, LLP as attorney for Defendant Vantage Tag, Inc. Within five (5) business days of the 11 date of this order, Attorney Wynkoop SHALL send to Vantage Tag via U.S. mail all client 12 materials and fees advanced in accordance with Rule of Professional Conduct 1.16(e), if not already 13 done so. 14 The Clerk of Court SHALL serve a copy of this order via U.S. Mail on Defendant Vantage 15 Tag, Inc. at the following addresses: (1) 312-2030 Canyon Road, Surry, BC, V3Z 6T3, CANADA; 16 (2) 214-5455 152nd Street, Surrey BC V3S 5A5, CANADA; and (3) 15272 Croydon Drive Suite 17 207, Surrey, BC V3Z 0Z5, CANADA. 18 19 IT IS SO ORDERED. 20 Dated: 21 /s/ Sheila K. Oberto July 3, 2024 . UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 5

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?