Miller v. Stone

Filing 20

ORDER signed by Magistrate Judge Allison Claire on 4/5/16 ORDERING that the submitted "Substitution of Attorneys" 18 is NOT APPROVED; Plaintiff shall serve and file a response to the Motion To Stay (ECF No. 15 ), no later than 4/19/2016 at 4:30 p.m., at which time the motion will be taken under submission. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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In re:

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WATERFORD FUNDING, LLC, et al.,

No. 2:15-mc-0137 WBS AC

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Debtors

ORDER

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GIL A. MILLER, Chapter 11 Trustee for
WATERFORD FUNDING, LLC, et al.,

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Plaintiffs,

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v.

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JOHN STONE,

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Defendant.

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I. PROCEDURAL HISTORY

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This matter involves a judgment entered by the Bankruptcy Court of the District of Utah.

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According to the documents on file in this case, plaintiff Gil. A. Miller is the Chapter 11 Trustee

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for debtors Waterford Funding, LLC, et al. See ECF No. 1 at 7 (bankruptcy adversary

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complaint). On January 5, 2011, the Trustee filed an adversary complaint against defendant John

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Stone. See ECF No. 1 at 6. On June 24, 2011, the bankruptcy court entered a default judgment

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against defendant. See ECF No. 21 at 4-5.

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On or about November 24, 2015, the Trustee assigned the judgment to Baker Recovery

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Services. ECF No. 2. On November 4, 2015, Baker registered the default judgment in this court.

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ECF No. 1. On December 4, 2014, the undersigned granted Baker’s motion to order defendant to

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appear for a judgment debtor examination. ECF No. 7. That examination is currently scheduled

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for May 4, 2016. See ECF No. 14. However, a motion to stay this proceeding is now pending

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before the undersigned. See ECF No. 15 (motion), 19 (referral to magistrate judge).

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II. THE PENDING MOTIONS

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A. Withdrawal of Attorney for Baker

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Baker has filed a document entitled “Substitution of Attorneys,” stating that “Baker, as a

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sole proprietorship, desires to represent itself in propia persona in place and stead of its present

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attorneys . . ..” ECF No. 18 at 1 (citing E.D. Cal. R. 182(g)).

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1. Substitution of Attorneys
Although the motion is entitled “Substitution of Attorneys,” and is purportedly filed

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pursuant to Local Rule 182(g), that rule only applies when an attorney is substituting “another

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attorney” in his or her place. Here, counsel for Baker – Brett H. Ramsaur and Anthony J.

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Carucci, of Snell & Wilmer L.L.P. – are not substituting another attorney in their place. Rather,

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counsel would be withdrawing, and leaving their client to represent itself. Such a motion is

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governed by Local Rules 182(d) and 183.

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2. Attorney withdrawal
When an attorney wishes to withdraw, leaving his or her client to represent itself “in

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propria persona,” the attorney must comply with Local Rule 182(d) and the Rules of Professional

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Conduct of the State Bar of California. Local Rule 182(d) requires, among other things, that

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counsel “shall provide an affidavit stating the current or last known address or addresses of the

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client . . ..” Counsel here have not complied with the requirements of Local Rule 182(d), nor the

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requirements of the California rules governing withdrawal of counsel. Accordingly, the court will

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not approve their submission.

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3. Baker cannot represent itself
Baker, a business entity, may not represent itself in this court; it can appear “only by an
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attorney.” Local Rule 183(a) (“[a] corporation or other entity may appear only by an attorney”);

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Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 202 (1993)

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“a corporation may appear in the federal courts only through licensed counsel, . . . [and] the

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rationale for that rule applies equally to all artificial entities”). Accordingly, if counsel for Baker

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does successfully withdraw from this case, and no other counsel is substituted in, this proceeding

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will be dismissed, as Baker will be unable to proceed on its own.

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B. Motion To Stay

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The Judgment Debtor has filed a motion to stay these proceedings, and initially noticed it

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to be heard on May 31, 2016 before the district judge presiding over this matter. ECF No. 15.

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The district judge has vacated the hearing date and referred the motion to the undersigned. ECF

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No. 19. The undersigned will order briefing on this motion.

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III. CONCLUSION

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For the reasons stated above, IT IS HEREBY ORDERED that:

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1. The submitted “Substitution of Attorneys” (ECF No. 18), is NOT APPROVED;

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2. Plaintiff shall serve and file a response to the Motion To Stay (ECF No. 15), no later

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than April 19, 2016 at 4:30 p.m., at which time the motion will be taken under submission.

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DATED: April 5, 2016

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