Ben et al v. Eli Lilly and Company

Filing 76

ORDER signed by District Judge Kimberly J. Mueller on 12/13/2018 GRANTING 64 Motion to Withdraw as Attorney. Counsel Michael Baum and R. Brent Wisner are ORDERED to serve plaintiff Rachel Anne Ben with a copy of this order and file proof of servic e within 7 days. Plaintiff's counsel must comply with all obligations under California Rules of Professional Conduct Rule 3700(D) regarding release of a client's papers and property and return of unearned fees, and must also file proof of compliance within 7 days. Plaintiff Rachel Anne Ben is now proceeding pro se. The case is REFERRED to the assigned magistrate judge for future proceedings. (Huang, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RACHEL ANNE BEN, et al.,

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Plaintiff,

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No. 2:14-cv-02914-KJM-EFB

v.

ORDER

ELI LILLY AND COMPANY,

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Defendant.

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Attorneys Michael Baum and R. Brent Wisner (“plaintiff’s counsel”), of the law
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firm Baum Hedlund Aristei & Goldman, P.C., move to withdraw as counsel of record for plaintiff
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Rachel Anne Ben. ECF No. 64. The motion is unopposed. ECF No. 66. On November 29,
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2018, the court submitted the motion without oral argument pursuant to Local Rule 230(g). ECF
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No. 75. For the following reasons, the court GRANTS the motion to withdraw.
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I.

LEGAL STANDARD

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If withdrawal would leave a client in propria persona, Local Rule 182(d) requires
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the withdrawing party to seek leave of court, file a formal motion and provide notice of the
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withdrawal to the client and all other parties who have appeared. The attorney must also provide
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an affidavit stating the current or last known address or addresses of the client and the efforts
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made to notify the client of the motion to withdraw. Id. Withdrawal must also comply with the
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Rules of Professional Conduct of the State Bar of California. Id. Rule of Professional Conduct

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3–700(A)(2) requires an attorney to “take[] reasonable steps to avoid reasonably foreseeable

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prejudice to the rights of the client, including giving due notice to the client, allowing time for

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employment of other counsel, complying with rule 3-700(D), and complying with applicable laws

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and rules.” The Rules permit withdrawal if, as relevant here, the client’s “conduct renders it

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unreasonably difficult for the member to carry out the employment effectively.” Id. 3–

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700(C)(1)(d).

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Whether to grant a motion to withdraw is within the court’s discretion. United
States v. Carter, 560 F.3d 1107, 1113 (9th Cir. 2009). Courts consider several factors when

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evaluating a motion to withdraw, including the reasons for withdrawal, possible prejudice to the

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client and other litigants, harm to the administration of justice, and possible delay. Deal v.

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Countrywide Home Loans, No. 09-01643, 2010 WL 3702459, at *2 (N.D. Cal. Sept. 15, 2010)

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(citation omitted).

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II.

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DISCUSSION
Here, plaintiff’s counsel have established good cause for withdrawal, and have

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complied with the applicable local rules and rules of professional conduct. They seek to

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withdraw because “[i]rreconcilable differences have arisen between client and counsel which

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make it unreasonably difficult for counsel to carry out their employment effectively.” ECF No.

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64 ¶ 1. Further, “the relationship of trust and confidence essential to the attorney-client

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relationship cease[s] to exist.” Wisner Aff., ECF No. 64-1, ¶ 1. This is a valid basis for

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withdrawal under California Rule of Professional Conduct 3–700(C)(1)(d).

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The court is also satisfied that plaintiff’s counsel’s withdrawal complies with

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California Rule of Professional Conduct 3–700(A)(2), which requires that the withdrawing

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attorney “take[] reasonable steps to avoid reasonably foreseeable prejudice to the rights of the

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client.” Plaintiff has had sufficient time to hire new counsel and withdrawal will not delay the

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case or affect any upcoming deadlines. At least 30 days prior to filing this motion, efforts were

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made to contact plaintiff and inform her of counsel’s desire to withdraw. Wisner Aff. ¶ 2. These

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efforts confirmed plaintiff’s address, as did prior correspondence which was mailed and verified
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via return receipt. Id. ¶¶ 3, 4; see also Stache v. Int'l Union of Bricklayers & Allied Craftsmen,

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AFL-CIO, 852 F.2d 1231, 1234 n.2 (9th Cir. 1988) (“Under federal law . . ., the correct

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addressing, posting, and mailing of a letter creates a presumption that the letter was received by

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the intended party.”). On November 2, 2018, plaintiff’s counsel mailed, by certified mail, a copy

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of this motion and all supporting documents to plaintiff. Wisner Aff. ¶ 5. With no indication that

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plaintiff has attempted to reciprocate communication with counsel, and with no opposition by

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defendant, the court finds no reason to doubt the representations of plaintiff’s counsel.

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Additionally, withdrawal will not prejudice remaining parties. This action,
ongoing since 2014, is one of numerous actions involving the antidepressant Cymbalta in which a

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comprehensive settlement framework has been established for each claimant to receive an

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individual settlement evaluation by a Special Master. See Joint Status Rep., ECF No. 56, at 1.

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Plaintiff here has undergone a settlement evaluation, yet final resolution of her individual claim

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remains unresolved due to a breakdown in the attorney-client relationship. Id.; ECF No. 64. Ms.

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Ben is the only remaining plaintiff in this action, all other plaintiffs have either transferred to the

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Southern District of Indiana, see Transfer Order, ECF No. 28, or have mutually agreed to dismiss

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their claims, see Stipulation to Dismiss, ECF No. 69. No pending deadlines or hearings remain.

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For these reasons, the court has no reason to believe withdrawal will cause prejudice to any

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remaining party.

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Finally, plaintiff’s counsel have satisfied Local Rule 182(d) by notifying plaintiff

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of this impending motion to withdraw and provided her current address in Mr. Wisner’s affidavit.

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Wisner Aff. ¶ 3.

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III.

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CONCLUSION
The court GRANTS the motion to withdraw, ECF No. 64. Counsel Michael Baum

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and R. Brent Wisner are ORDERED to serve plaintiff Rachel Anne Ben with a copy of this order

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and file proof of service with the court within seven (7) days. Plaintiff’s counsel must comply

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with all obligations under California Rules of Professional Conduct Rule 3–700(D) regarding

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release of a client’s papers and property and return of unearned fees, and must also file proof of

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compliance with the court within seven (7) days.
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Plaintiff Rachel Anne Ben is now proceeding pro se. The Clerk of the Court shall

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reflect this on the court’s docket and update her address as provided in the affidavit of R. Brent

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Wisner referenced above. The case is referred to the assigned magistrate judge for future

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proceedings under Local Rule 302(c)(21).

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IT IS SO ORDERED.
DATED: December 13, 2018.

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UNITED STATES DISTRICT JUDGE

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