Hogan v. City of Sacramento et al

Filing 16

ORDER signed by District Judge Kimberly J. Mueller on 8/25/16 ORDERING the motion 13 to withdraw is GRANTED. The hearing on the motion vacated. The Clerk is directed to serve this order on plaintiff at the address provided by counsel: 1530 Fulton Avenue, #53, Sacramento, California 95825. As plaintiff is now pro se, the case is referred to the assigned magistrate judge for future proceedings under Local Rule 302(c)(21). (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DIANTAE HOGAN,

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Plaintiff,

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No. 2:15-cv-01933-KJM-KJN

v.

ORDER

CITY OF SACRAMENTO, et al.,

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Defendants.

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This matter is before the court on a motion to withdraw as attorney by counsel for

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plaintiff Diantae Hogan. Mot., ECF No. 13. The motion is unopposed. As explained below, the

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motion is GRANTED.

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I.

LEGAL STANDARD

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The local rules of this district require an attorney who would withdraw and leave

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his or her client without representation to obtain leave of the court upon a noticed motion. E.D.

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Cal. L.R. 182(d). Local Rule 182(d) also requires an attorney to provide notice to the client and

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all other parties who have appeared, and an affidavit stating the current or last known address of

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the client. Finally, to comply with Local Rule 182(d), the attorney must conform to the

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requirements of the California Rules of Professional Conduct. Id. California Rule of

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Professional Conduct 3-700 provides several grounds upon which an attorney may seek to
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withdraw, including where “[t]he client knowingly and freely assents to termination of the

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employment,” Cal. R. Prof. Conduct 3-700(C)(5), and where client’s conduct has “render[ed] it

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unreasonably difficult for the member to carry out the employment effectively,” Cal. R. Prof.

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Conduct 3-700(C)(1)(d).

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The decision to grant or deny a motion to withdraw is within the court’s discretion.

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McNally v. Eye Dog Found. for the Blind, Inc., No. 09-01184, 2011 WL 1087117, at *1 (E.D.

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Cal. Mar. 24, 2011) (citation omitted). District courts in this circuit have considered several

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factors when evaluating a motion to withdraw, including the reason for withdrawal, prejudice to

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the client, prejudice to the other litigants, harm to the administration of justice, and possible

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delay. See Deal v. Countrywide Home Loans, No. 09-01643, 2010 WL 3702459, at *2 (N.D. Cal.

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Sept. 15, 2010); CE Res., Inc. v. Magellan Group, LLC, No. 08-02999, 2009 WL 3367489, at *2

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(E.D. Cal. Oct. 14, 2009); Beard v. Shuttermart of Cal., Inc., No. 07-594, 2008 WL 410694, at *2

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(S.D. Cal. Feb. 13, 2008).

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II.

DISCUSSION

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Good cause exists for counsel’s motion because plaintiff has “repeatedly failed to

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maintain regular communications.” Mot. at 3; see Am. Ward Decl. ¶¶ 11, 12, ECF No. 13-1. As

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a result counsel have been unable to prosecute the matter or provide timely responses to

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defendants. Mot. at 3. Second, after reviewing discovery issues, counsel and plaintiff have

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“reached an impasse based on irreconcilable differences on prosecuting this case further.” Id.;

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see also Am. Ward Decl. ¶ 4. The attorney-client relationship cannot be maintained where there

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is an irremediable breakdown in communication between plaintiff and counsel such that counsel

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can no longer effectively represent plaintiff. See United Fabrics Int’l, Inc. v. Life N Style

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Fashions Inc., No. 15-05733, 2016 WL 4208425, at *2 (C.D. Cal. Aug. 9, 2016) (the attorney-

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client relationship is irreparably broken where the client refuses to provide necessary information

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in the course of the representation); McNally v. Eye Dog Found. For Blind, Inc., 2010 WL

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1687657, at *1–2 (E.D. Cal. Apr. 26, 2010) (withdrawal by counsel allowed where irreconcilable

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differences have arisen between counsel and client, and where client has not paid attorney’s fees).

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Counsel has provided complete contact information for plaintiff, and served advance written and
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verbal notice to plaintiff. Am. Ward Decl. ¶¶ 5, 8, 10. Plaintiff has not responded or filed any

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objection with the court.

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Given that good cause exists, the court next determines whether there is a risk of

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prejudice to plaintiff if the motion is granted. Here, counsel avers that he and plaintiff agreed that

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another attorney would be better suited for this case. Am. Ward Decl. ¶ 5. In addition, counsel

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has provided plaintiff with notice of the motion and with time to find new counsel. Id. ¶ 6.

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Moreover, this litigation is in its early stages with no dispositive motions filed as of the date of

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this order, and with discovery still open until October 14, 2016. Pretrial Sched. Order, ECF

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No. 11. The court finds the risk of prejudice to plaintiff is minimal if the motion is granted.

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Because no opposition has been filed, and the litigation is in its early stages, there

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is also no prejudice to the other litigants, no harm to the administration of justice, and no other

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delay. Any new counsel for plaintiff will have sufficient time to get up to speed. Should no new

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counsel be found, plaintiff may proceed pro se, an issue that counsel raised with plaintiff prior to

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the filing this motion. Am. Ward Decl. ¶ 7.

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For the foregoing reasons, the motion to withdraw is granted.
III.

CONCLUSION
The motion to withdraw is GRANTED. The hearing on the motion vacated. The

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Clerk of Court is directed to serve this order on plaintiff at the address provided by counsel: 1530

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Fulton Avenue, #53, Sacramento, California 95825. As plaintiff is now pro se, the case is

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referred to the assigned magistrate judge for future proceedings under Local Rule 302(c)(21).

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This order resolves ECF No. 13.

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IT IS SO ORDERED.

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DATED: August 25, 2016.

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UNITED STATES DISTRICT JUDGE

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