Parino v. BidRack Inc.

Filing 67

ORDER GRANTING MOTION FOR LEAVE TO WITHDRAW AS COUNSEL by Judge William Alsup [granting 58 Motion to Withdraw as Attorney]. Attorney Jordan A. Stein; Bryan Kyle Clark and Blaine Christopher Kimrey terminated. (whasec, COURT STAFF) (Filed on 4/27/2012)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA

8
9

11
For the Northern District of California

United States District Court

10
VERNA PARINO, on behalf of herself and
all others similarly situated,
Plaintiff,

12
13
14

No. C 11-03149 WHA

v.

ORDER GRANTING
MOTION FOR LEAVE TO
WITHDRAW AS COUNSEL

BIDRACK, INC., a Delaware corporation,
and JOHN DOE,

15
Defendants.
16

/

17
In this purported class action, defense counsel moves for the second time for leave
18
to withdraw as counsel of record. For the following reasons, the motion is GRANTED.
19
This purported class action was commenced in June 2011. Defendant BidRack, Inc.,
20
owns and operates www.bidrack.com, an online “penny auction” site where bidders purchase
21
and place bids in hopes of winning auctions for valuable items at discounted prices. On May 20,
22
2011, plaintiff Verna Parino was directed to the BidRack website after clicking on a paid
23
advertisement. Despite her belief that registration with the website was free, plaintiff was
24
charged $99 for a “bid pack” after entering her billing information.
25
The complaint alleged the following claims for relief: (1) violation of California
26
Business and Professions Code Section 17500, et seq.; (2) violation of California Civil Code
27
Section 1750, et seq.; (3) violation of California Unfair Competition Law (4) fraud in the
28

1

inducement; (5) conspiracy to commit fraud in the inducement; (6) breach of contract; and

2

(7) restitution/unjust enrichment.

was filed (Dkt. No. 23). The motion was largely unsuccessful — only the conspiracy claim was

5

dismissed (Dkt. No. 40). Two weeks after the order on the motion to dismiss was issued,

6

defense counsel filed his first motion for leave to withdraw as counsel of record, stating that

7

“[f]ollowing the Court’s decision on BidRack’s motion to dismiss, BidRack has directed Lathrop

8

& Gage and its attorneys to withdraw their appearance on behalf of BidRack because BidRack is

9

no longer in a position to fund its defense in this litigation” (Dkt. No. 45). On October 20, that

10

motion was denied on the ground that BidRack is a corporation and may not litigate this action

11
For the Northern District of California

Counsel for defendant Bidrack filed a motion to dismiss two months after the complaint

4

United States District Court

3

without counsel, and that there was no indication that substitute counsel had been sought or

12

found.

13

In August 2011, BidRack tendered a Rule 68 offer of judgment to plaintiff’s counsel.

14

Though BidRack’s offer of judgment was never filed with the Court, plaintiff’s motion to quash

15

was granted because offers to compromise may not be made before appointment of class

16

or interim counsel (Dkt. No. 50). Even now, ten months after the complaint was filed, BidRack

17

has not yet filed its answer. In March 2011, plaintiff moved for entry of default against

18

BidRack, stating that it had “failed to answer the complaint [and] refused to otherwise engage in

19

litigation of this action . . . .” Default was accordingly entered against BidRack (Dkt. Nos.

20

55–56).

21
22
23
24
25
26
27
28

On March 20, 2012, counsel for BidRack filed the instant motion again seeking leave
to withdraw from representation. In support of its motion, counsel states:
The prior BidRack contacts for this matter, Vipesh Agarwal and
Dan Sullivan, have become non-responsive to Lathrop & Gage;
accordingly, Lathrop & Gage knows of no individual willing to
speak or act on behalf of BidRack in this lawsuit . . . [E]ven if the
Court had not entered default, jurisdiction is based solely upon
diversity of citizenship under the [CAFA], and plaintiff failed to
timely move for class certification. Thus, no basis for jurisdiction
exists because the individual plaintiff, Verna Parino, (who appears
to have a claim of $99), cannot satisfy the CAFA prerequisites.
(Dkt. No. 58 at 1).
2

1

Rule 3–700(C)(5) allows for permissive (not mandatory)withdrawal where “[t]he client

2

knowingly and freely assents to termination of the employment.” Civil Local Rule 11-5 provides

3

in relevant part:

4
5
6
7
8
9

Counsel may not withdraw from an action until relieved by order
of Court after written notice has been given reasonably in advance
to the client and to all other parties who have appeared in the case.
When withdrawal by an attorney from an action is not
accompanied by simultaneous appearance of substitute counsel or
agreement of the party to appear pro se, leave to withdraw may be
subject to the condition that papers may continue to be served on
counsel for forwarding purposes (or on the Clerk, if the Court so
directs), unless and until the client appears by other counsel or pro
se. When this condition is imposed, counsel must notify the party
of this condition.

10
At the hearing on April 26, 2012, counsel provided good cause in support of its motion
For the Northern District of California

United States District Court

CIV. L. R. 11-5.
11
12
to withdraw from representation in this action. First, defendant was put on notice and
13
consented to counsel’s withdrawal. Second, counsel advised the Court that the sole remaining
14
member of BidRack, who resides in India, has been non-responsive since at least October 2011.
15
Third, counsel for plaintiff restated its non-opposition to the instant motion. Finally, though
16
BidRack is a corporation and thus unable to proceed pro se, this action is on its dying breath.
17
The deadline for class certification has long passed, and default has been entered by the clerk
18
against BidRack for failure to answer the complaint. It is highly unlikely that any further
19
representation will be required. Nevertheless, it would be unfair to continue to require
20
appearances by BidRack’s counsel, whose client has absented itself. Accordingly, the motion
21
for leave to withdraw as counsel is GRANTED. Plaintiff may, however, continue to serve papers
22
on counsel for defendant BidRack for forwarding purposes until this action is formally closed.
23
24

IT IS SO ORDERED.

25
Dated: April 27, 2011.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

26
27
28
3