Entrepreneur Media, Inc.v. Smith

Filing 81

ORDER signed by Magistrate Judge Edmund F. Brennan on 9/20/2011 ORDERING 77 The 9/28/2011 hearing on Steinberg's motion to withdraw as counsel for Karen Mix, is VACATED; Steinberg's motion to withdraw as counsel for Mix, is GRANTED; Karen Mix will hereafter be proceeding pro se in this action, and any filings, notices, or correspondence shall be served upon her, at Copper Fox Court, in Citrus Heights, CA. (Reader, L)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

ENTREPRENEUR MEDIA, INC.,
Plaintiff,

11
vs.

12
13

No. MISC. S-10-55 JAM EFB

SCOTT SMITH dba
ENTREPRENEURPR,

14
Defendant.

ORDER
/

15

This miscellaneous action, in which defendant is pro se, was referred to the undersigned

16
17

under Eastern District of California Local Rule 302(a). Presently noticed for hearing on

18

September 28, 2011 is third party Karen Mix’s counsel’s motion to withdraw. Dckt. No. 77. No

19

opposition to the motion has been filed. For the following reasons, the undersigned vacates the

20

hearing and grants the motion to withdraw.

21

BACKGROUND

22

In July 2003, judgment creditor and plaintiff herein Entrepreneur Media, Inc. (“EMI”)

23

obtained a judgment in the Central District of California for trademark infringement plus a

24

substantial award of attorneys’ fees against judgment debtor and defendant herein Scott Smith

25

(“Smith”). In May 2010, EMI registered the judgment in this district because Smith resides here.

26

////
1

1

On January 14, 2011, EMI filed a motion to appoint a receiver to sell certain domain

2

names owned and/or controlled by Smith. Dckt. No. 24. Additionally, on February 11, Smith

3

filed a motion to quash a third party subpoena that was issued to Chase Bank, along with a

4

motion for a protective order and a motion for sanctions, arguing that the subpoena sought

5

information related to a credit card account maintained by Smith’s girlfriend, Karen Mix

6

(“Mix”). Dckt. No. 29. Mix also joined in the motion to quash, motion for a protective order,

7

and motion for sanctions. Dckt. No. 37.

8
9

The motions were heard on May 4, 2011, along with a motion for a stay pending appeal
filed by Smith on shortened time. At the May 4, 2011 hearing, the court indicated that it

10

intended to (1) deny EMI’s motion to appoint a receiver without prejudice (since the court

11

opined that EMI should at least proceed with the judgment debtor exam before seeking to sell

12

Smith’s domain names); (2) deny Smith’s motion for a stay pending appeal (since a stay of the

13

entire case was not warranted); and (3) continue the hearing on Smith and Mix’s motions to

14

quash, for a protective order, and for sanctions to June 22, 2011 so that those motions could be

15

heard after the judgment debtor examination of Smith, which was at that time scheduled to occur

16

on May 18 (since the court was concerned about the intrusiveness of the subpoena with regard to

17

Mix’s bank account, especially since EMI had not yet conducted a judgment debtor exam of

18

Smith). Dckt. Nos. 59, 64.

19

Since the May 4 hearing, the court has granted Smith two extensions of the judgment

20

debtor examination and his deadline for responding to a subpoena for documents issued by EMI.

21

Accordingly, the judgment debtor examination is currently scheduled for October 19, 2011 and

22

the hearing on Smith and Mix’s motions to quash the subpoena, for a protective order, and for

23

sanctions is currently set for November 16, 2011 at 10:00 a.m. in Courtroom No. 24.

24

Additionally, on or before November 2, 2011, plaintiff is required to file a brief indicating

25

whether the subpoena to Chase will be withdrawn as moot, and if not, indicating why the

26

motions to quash the subpoena should not be granted, and on or before November 9, 2011,
2

1

defendant and/or Mix shall file a response to plaintiff’s brief. The briefs are not to exceed fifteen

2

pages. See Dckt. No. 72.

3

MOTION TO WITHDRAW

4

On August 29, 2011, attorney Alan Steinberg, who is counsel of record for Mix, filed a

5

motion to withdraw as Mix’s counsel. Dckt. No. 77. Steinberg contends that he should be

6

permitted to withdraw because Mix (1) has been uncommunicative with Steinberg, (2) expressed

7

dissatisfaction with Steinberg’s representation of her, and (3) has failed to meet her obligations

8

to pay for legal fees and costs incurred in this matter, despite receiving monthly invoices. Dckt.

9

No. 77-1; Steinberg Decl., Dckt. No. 77-2, ¶¶ 4-11. Steinberg contends that “[t]here will be no

10

prejudice to the Court, the parties or [] Mix in allowing counsel to withdraw.” Dckt. No. 77-1 at

11

1.

12

As required by Local Rule 182(d), Steinberg provided notice to Mix and all other parties

13

who have appeared in this action, and filed a declaration stating Mix’s current or last known

14

address and the efforts made to notify Mix of the motion to withdraw. Steinberg Decl. ¶ 12;

15

Supp. Steinberg Decl., Dckt. No. 78, ¶ 2. Nonetheless, no party has filed an opposition or

16

statement of non-opposition to the motion.1

17

As provided in Local Rule 182(d), “[w]ithdrawal as attorney is governed by the Rules of

18

Professional Conduct of the State Bar of California, and the attorney shall conform to the

19

requirements of those Rules.” California Rule of Professional Conduct 3-700(C)(1) provides

20

that an attorney may withdraw when, among other things, the client “renders it unreasonably

21

difficult for the member to carry out the employment effectively” or “breaches an agreement or

22

obligation to the member as to expenses or fees.” Cal. Rules Prof. Conduct 3-700(C)(1)(d), (f).

23
24
25
26

1

Local Rule 230(c) provides that opposition to the granting of a motion, or a statement of
non-opposition thereto, must be filed and served no later than fourteen days preceding the
noticed hearing date or, in this instance, by September 14, 2011. Local Rule 230(c) further
provides that “[n]o party will be entitled to be heard in opposition to a motion at oral arguments
if opposition to the motion has not been timely filed by that party.”
3

1

Here, Steinberg declares that Mix’s lack of communication with him and her dissatisfaction with

2

his services render it unreasonably difficult for him to carry out the employment effectively, and

3

that Mix has breached an obligation to pay for legal fees and costs incurred in this matter.

4

Additionally, Steinberg has “taken reasonable steps to avoid reasonably foreseeable prejudice to

5

the rights of [Mix], including giving due notice to [Mix and] allowing time for employment of

6

other counsel . . . .” Cal. Rules Prof. Conduct 3-700(A)(2). The hearing on Mix’s motion to

7

quash is not scheduled to be heard until November 16, 2011, and Mix’s supplemental brief

8

regarding the motion to quash is not due until November, 9, 2011. Therefore, Steinberg’s

9

request to withdraw as Mix’s counsel will be granted.2

10

Accordingly, IT IS HEREBY ORDERED that:

11

1. The September 28, 2011 hearing on Steinberg’s motion to withdraw as counsel for

12

Mix, Dckt. No. 77, is vacated.

13

2. Steinberg’s motion to withdraw as counsel for Mix, Dckt. No. 77, is granted.

14

3. Mix will hereafter be proceeding pro se in this action, and any filings, notices, or

15

correspondence shall be served upon her at 7824 Copper Fox Court, Citrus Heights, California

16

95610.3

17

////

18

////

19

////

20

////

21
22
23
24
25
26

2

Steinberg is reminded of his obligation to “promptly release to the client, at the request
of the client, all the client papers and property,” subject to any protective order or non-disclosure
agreement. Cal. Rules Prof. Conduct 3-700(D)(1).
3

The October 19, 2011 judgment debtor examination and the November 16, 2011 hearing
on Smith and Mix’s motions to quash the subpoena issued by EMI to Chase Bank, for a
protective order, and for sanctions, Dckt. Nos. 29 and 37, remain on calendar. Also remaining
on calendar is EMI’s motion for assignment of rights, a restraining order, and turnover order,
which is noticed for hearing on October 26, 2011, Dckt. No. 79.
4

1
2
3
4

4. The Clerk is directed to serve a copy of this order on Mix at 7824 Copper Fox Court,
Citrus Heights, California 95610.
SO ORDERED.
Dated: September 20, 2011.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
5