Walker v. Felker

Filing 101

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/24/11 DENYING 100 Motion to Shorten Time. The hearing on the 99 MOTION to WITHDRAW as ATTORNEY filed by Marquis Vernard Walker is RESET for 5/27/2011 at 10:00 AM in Courtroom 24 (EFB) before Magistrate Judge Edmund F. Brennan. (Donati, J)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

MARQUIS VERNARD WALKER,
Plaintiff,

11
12

vs.

13

No. CIV S-07-1323 WBS EFB P

T. FELKER, et al.,

14

Defendants.

ORDER
/

15
16

Plaintiff is a state prisoner proceeding with counsel in an action brought under 42 U.S.C.

17

§ 1983. The parties have filed a document titled “Stipulation and [Proposed Order] for

18

Shortening Time for Hearing on the Motion for Bhavani G. Murugesan for Leave to Withdraw

19

as Counsel.” Dckt. No. 100.

20

On January 7, 2011, after plaintiff, then proceeding pro se, defeated defendant Cox’s

21

motion for summary judgment, the court appointed attorney Bhavani G. Murugesan to represent

22

plaintiff for all further proceedings. Dckt. Nos. 83, 90. Ms. Murugesan was selected from the

23

court’s pro bono attorney panel. Dckt. No. 90.

24

On January 19, 2011, the court scheduled a final pretrial conference for February 23,

25

2011. Dckt. No. 91. The court directed the parties to file a joint pretrial statement no later than

26

February 9, 2011. Id.
1

1

On February 7, 2011, the parties filed a stipulation to extend the deadline for filing the

2

joint pretrial statement, from February 9, to May 4, 2011. Dckt. No. 92. Counsel for all parties

3

represented that “it is their collective objective to prepare a meaningful joint pretrial statement

4

that will expedite the Court’s pretrial planning process.” Id., ¶ 7.

5

On February 10, 2011, the court extended the deadline for filing the joint pretrial

6

statement to May 4, 2011, and continued the pretrial conference to May 18, 2011. Dckt. No. 93.

7

On March 31, 2011, plaintiff moved to dismiss defendant Snyder from this action

8

pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure. Dckt. No. 94. By the

9

terms of Rule 41(a)(1)(A)(i), a plaintiff may file a notice of dismissal “before the opposing party

10

serves either an answer or a motion for summary judgment.” Defendant Snyder filed an answer

11

on June 15, 2009. Dckt. No. 39. Accordingly, on May 4, 2011, the court denied plaintiff’s

12

motion without prejudice to the filing of a stipulation of dismissal pursuant to Rule

13

41(a)(1)(A)(ii), or a request for dismissal pursuant to Rule 41(a)(2). Dckt. No. 96. To date,

14

plaintiff has not taken any further action to dismiss defendant Synder from this action.

15

On May 2, 2011, two days before the extended deadline for filing the joint pretrial

16

statement, the parties filed a “Stipulation for Joint Scheduling Plan Reopening Discovery.”

17

Dckt. No. 95. The stipulation was premised on “the recent appointment of counsel for plaintiff,”

18

and sought to “re-open discovery for all purposes” and allow all parties “the right to bring

19

dispositive motions even if they have been previously brought.” Id. According to the

20

stipulation, the joint pretrial statement would be due by February 29, 2012. Id. Approval of the

21

parties’ stipulation would have required modification of the June 22, 2009 discovery and

22

scheduling order. Dckt. No. 41. A discovery and scheduling order may only be modified upon a

23

showing of good cause. Fed. R. Civ. P. 16(b). Good cause exists when the moving party

24

demonstrates he cannot meet the deadline despite exercising due diligence. Johnson v.

25

Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Since the May 2nd stipulation

26

was not supported by good cause, the court did not approve it. Dckt. No. 96.
2

1

On May 4, 2011, the parties filed a document titled “Stipulation and [Proposed] Order for

2

Continuance of Pretrial Conference.” Dckt. No. 97. Plaintiff’s counsel indicated that in March

3

of 2011 she concluded that further, unspecified discovery was necessary to adequately prepare

4

the case, and because the parties believed that the court would approve of the parties’ May 2nd

5

stipulation, “little effort had been made to confer and prepare the pretrial statement.” Id., ¶¶ 3, 7.

6

The parties stipulated to continuing the joint pretrial conference from May 18, 2011 to June 7,

7

2011, and to filing the joint pretrial statement on May 24, 2011. Id. On May 5, 2011, the court

8

approved the parties’ stipulation and extended the deadline for filing the joint pretrial statement

9

to May 24th and continued the pretrial conference to June 7, 2011. Dckt. No. 98.

10

On May 19, 2011, Ms. Murugesan filed a motion to withdraw as counsel for plaintiff.

11

Dckt. No. 99. In violation of Local Rule 230(b), Ms. Murugesan failed to notice the motion for

12

hearing. See E.D. Cal. L.R. 230(b). Ms. Murugesan explains that during the week of May 16,

13

2011, she accepted new employment with a law firm that represents medical insurance

14

companies and doctors “against inmate complaints from various California correctional

15

institutes.” Dckt. No. 99. Ms. Murugesan states that her current representation of an inmate

16

“against doctors will ethically interfere with her new employment as a medical malpractice

17

defense attorney.” Id. Ms. Murugesan describes her attempts to give notice to her client of her

18

motion to withdraw, see id., but does not otherwise address what reasonable steps she has taken

19

“to avoid reasonably foreseeable prejudice to the rights of the client . . . .” Cal. R. Prof’l

20

Conduct 3-700(A)(2); E.D. Cal. L.R. 182(d). Nor does Ms. Murugesan address the possibility of

21

whether this potential conflict of interest can be waived.

22

On May 23, 2011, the parties filed a document titled “Stipulation and [Proposed Order]

23

for Shortening Time for Hearing on the Motion for Bhavani G. Murugesan for Leave to

24

Withdraw as Counsel.” Dckt. No. 100. Ms. Murugesan requests that the court hear her motion

25

to withdraw on Wednesday, May 25, 2011, and indicates that defendants’ counsels do not object

26

to her request to shorten time or to her withdrawing from this case. Id.
3

1

IT IS HEREBY ORDERED that the parties’ Stipulation and [Proposed Order] for

2

Shortening Time for Hearing on the Motion for Bhavani G. Murugesan for Leave to Withdraw

3

as Counsel, wherein plaintiff’s counsel requests that the court hear her motion to withdraw on

4

Wednesday, May 25, 2011, is DENIED. IT IS FURTHER ORDERED that plaintiff’s motion to

5

withdraw (Dckt. No. 99) will be heard on Friday, May 27, 2011 at 10:00 a.m., in Courtroom No.

6

24.

7

DATED: May 24, 2011.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
4