Smith v. Hoffman

Filing 80

ORDER TO SHOW CAUSE, Motions terminated: 74 First MOTION to Withdraw as Attorney ;Declaration of Thomas A. Moore in support filed by Thomas E. Smith. Order to Show Cause Hearing set for 11/30/2017 09:30 AM.The attached order grants Mr. Moore's motion to withdraw, directs him to continue accepting service on behalf of Mr. Smith and to serve him with all filings and file proof of service, directs him to serve Mr. Smith with the attached order and file proof of service, and sets a hearing for 11/30/2017 at 9:30 a.m. At the hearing, Mr. Smith must appear. If he does not, he risks dismissal of his case for failure to prosecute it. (Beeler, Laurel) (Filed on 11/9/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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THOMAS E. SMITH,

Case No. 14-cv-01741-LB

Plaintiff,

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ORDER GRANTING MOTION TO
WITHDRAW

v.

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BRAD HOFFMAN, et al.,

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Defendants.

Re: ECF No. 74

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INTRODUCTION
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Thomas Moore moves to withdraw as counsel for the plaintiff, Thomas Smith, because Mr.
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Smith “has failed to respond to any and all . . . communication attempts regarding the upcoming
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deadlines in this case.”1 Mr. Moore notified Mr. Smith of his intention to withdraw by email three

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times between September 26, and October 4, 2017, and emailed his motion to Mr. Smith on
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October 9, 2017.2 Mr. Smith did not respond.3 The court held a hearing on November 9, 2017, at

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9:30 a.m. Mr. Smith did not appear. The court grants the motion to withdraw and directs Mr.
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Moore to continue to accept service of all filings and serve them on Mr. Smith, as discussed
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Motion to Withdraw – ECF No. 74; Moore Decl. – ECF No. 74 at 3 (¶¶ 3–4). Record citations refer
to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page
numbers at the top of documents.

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See Motion at 10–19; Moore Decl. at 4 (¶ 6).

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See generally Docket.

ORDER – No. 14-cv-01741-LB 

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below. The court also orders Mr. Smith to appear on November 30, 2017, at 9:30 a.m. to show

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cause why his case should not be dismissed based on his failure to prosecute it.

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GOVERNING LAW

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Under Civil Local Rule 11-5(a), “[c]ounsel may not withdraw from an action until relieved by

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order of Court after written notice has been given reasonably in advance to the client and to all

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other parties who have appeared in the case.” Until the client appears pro se or obtains other

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representation, motions to withdraw as counsel may be granted on the condition that current

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counsel continue to serve on the client all papers from the court and from the opposing parties.

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United States District Court
Northern District of California

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Civil L.R. 11-5(b).
Withdrawal is governed by the California Rules of Professional Conduct. See Nehad v.

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Mukasey, 535 F.3d 962, 970 (9th Cir. 2008) (applying California Rules of Professional Conduct to

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attorney withdrawal); see also Dieter v. Regents of Univ. of Cal., 963 F. Supp. 908, 910 (E.D. Cal.

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1997). Under California Rule of Professional Conduct 3-700(C), counsel may withdraw if the

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client makes it unreasonably difficult for the attorney to carry out his or her duties. Cal. R. Prof.

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Conduct 3-700(C)(1)(d). Failure to maintain regular communication with one’s counsel constitutes

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good cause for withdrawal. Ortiz v. Freitas, No. 14-CV-00322-JSC, 2015 WL 3826151, at *2

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(N.D. Cal. June 18, 2015).

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In compliance with California Rule of Professional Conduct 3-700(A)(2), counsel may not

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“withdraw from employment until the member has taken reasonable steps to avoid reasonably

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foreseeable prejudice to the rights of the client.” These steps include: (1) giving due notice to the

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client; (2) allowing time for employment of other counsel, pursuant to Rule 3-700(D); and

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(3) complying with applicable laws and rules. Cal. R. P. Conduct 3-700(A)(2); El Hage v. U.S.

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Sec. Assocs., Inc., No. 06-CV-7828-TEH, 2007 WL 4328809, at *1 (N.D. Cal. Dec. 10, 2007).

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The decision to permit counsel to withdraw is within the sound discretion of the trial court.

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U.S. v. Carter, 560 F.3d 1107, 1113 (9th Cir. 2009). Courts consider several factors when deciding

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a motion for withdrawal, including: “(1) the reasons counsel seeks to withdraw; (2) the possible

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prejudice that withdrawal may cause to other litigants; (3) the harm that withdrawal might cause to
ORDER – No. 14-cv-01741-LB

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the administration of justice; and (4) the extent to which withdrawal will delay resolution of the

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case.” Deal v. Countrywide Home Loans, No. 09-CV-01643-SBA, 2010 WL 3702459, at *2 (N.D.

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Cal. Sept. 15, 2010).
ANALYSIS

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1. Good Cause for Withdrawal
Good cause exists for Mr. Moore’s withdrawal. Mr. Smith has not participated in this case

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since he appealed the judgment in a related case.4 But, since the affirmance by the Ninth Circuit

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and “[s]ubsequent to the dismissal of Smith v. Harrington . . . [Mr. Moore and his staff] have

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repeatedly emailed . . . and telephoned [Mr. Smith] to discuss th[is] case, without success.”5
Further, Mr. Moore requested a continuance of the May 4, 2017, case-management conference for

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United States District Court
Northern District of California

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90 days to allow for Mr. Smith to find new counsel so Mr. Moore could withdraw.6 Despite

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“repeated[ ] email[s],” calls, and use of “services . . . to skip trace [Mr. Smith] on all known points

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of contact,” Mr. Moore has not been able to contact Mr. Smith.7 The court already granted the 90-

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day continuance that Mr. Moore requested,8 and issued an order to show cause after Mr. Moore

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did not appear at the case-management conference.9 In response to the order to show cause, Mr.

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Moore stated that he lost communication with Mr. Smith.10
Given Mr. Smith’s lack of communication and participation in the case, it is apparent that Mr.

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Moore’s continued representation would be unreasonably difficult. Mr. Moore has therefore

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shown good cause for withdrawal.

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Notice of Appeal – ECF No. 111 in Smith v. Harrington, et al., No. 12-CV-03533-LB.

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Moore Decl. – ECF No. 74 at 3 (¶ 3).

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See Case-Management Statement – ECF No. 60 at 2.

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See Moore Decl. – ECF No. 74 at 3 (¶¶ 3–5).

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See Case-Management Statement – ECF No. 60 at 2

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See Minute Entry – ECF No. 66; Order to Show Cause – ECF No. 67.

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Plaintiff’s Response – ECF No. 68 at 2.

ORDER – No. 14-cv-01741-LB

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2. Timing and Prejudice of Withdrawal
Mr. Moore has taken adequate measures to prevent reasonably foreseeable harm to Mr. Smith

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and his withdrawal will not prejudice the defendants.

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First, Mr. Moore has given Mr. Smith enough time and sufficient opportunities to object to the

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motion. Under Local Rule 11-5(a), Mr. Moore informed Mr. Smith of his intention to withdraw as

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counsel by voicemail and email.11 Mr. Moore emailed advance written notice of his intention three

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times: on September 26, September 29, and October 4.12 He also served Mr. Smith with the

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motion on October 9, 2017.13 Yet Mr. Smith did not respond and did not oppose the motion.
Second, Mr. Moore’s withdrawal will not prejudice the defendants. The court set a hearing for

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November 9, 201714 to allow Mr. Smith time to find new counsel (or appear pro se), if he decides

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United States District Court
Northern District of California

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to participate in the litigation. And, in any event, it is his failure to communicate — not Mr.

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Moore’s withdrawal — that has led to the Order to Show Cause.

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3. Further Hearing and Notice to Mr. Smith
Mr. Smith’s counsel served Mr. Smith with the court’s order setting the November 9 hearing.

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He also said at the hearing that he called Mr. Smith several times after he served him, reached

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voicemail, recognized Mr. Smith’s voice on the voicemail, left messages for him about the

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hearing, and never received a call back.
Under the circumstances, the court orders Mr. Smith to appear on November 30, 2017, at 9:30

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a.m. Mr. Smith must appear at the hearing, either through a new lawyer or in person if he has not

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been able to hire a lawyer yet. If he does not, he risks sanctions, including (1) terminating

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sanctions in the form of dismissal of his case if he does not appear and participate in his litigation

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and (2) monetary sanctions. The court sets forth the legal standards to give Mr. Smith an

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understanding about what the rules require of him.

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Motion – ECF No. 74 at 6–9.

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Id. at 2–3.

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Moore Decl. – ECF No. 74 at 4 (¶ 6); ECF No. 75 at 2.

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Order – ECF No. 73 at 2.

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ORDER – No. 14-cv-01741-LB

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3.1 Terminating sanctions

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Federal Rules of Civil Procedure 41(b) provides that if the plaintiff fails to prosecute or to

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comply with these rules or a court order, a defendant may move to dismiss the action or any claim

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against it. Such an order to dismiss operates as an adjudication on the merits. Fed. R. Civ. P. 41(b).

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“Rule 41(b) specifically provides that the failure of the plaintiff to prosecute his claim is

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grounds for involuntary dismissal of the action. The courts have read this rule to require

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prosecution with ‘reasonable diligence’ if a plaintiff is to avoid dismissal.” Anderson v. Air W.,

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Inc., 542 F.2d 522, 524 (9th Cir. 1976) (citing Ballew v. Southern Pacific Co., 428 F.2d 787 (9th

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Cir. 1970)). “This court has consistently held that the failure to prosecute diligently is sufficient by
itself to justify a dismissal, even in the absence of a showing of actual prejudice to the defendant

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United States District Court
Northern District of California

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from the failure.” Anderson, 542 F.2d 522 at 524 (internal citation omitted). “The law presumes

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injury from unreasonable delay.” Id. at 524 (citing States Steamship Co. v. Philippine Air Lines,

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426 F.2d 803, 804 (9th Cir. 1970)). “However, this presumption of prejudice is a rebuttable one

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and if there is a showing that no actual prejudice occurred, that factor should be considered when

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determining whether the trial court exercised sound discretion.” Id. (citing Reizakis v. Loy,

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490 F.2d 1132 (4th Cir. 1974).

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In Yourish v. California Amplifier, the Ninth Circuit applied the same five-factor standard

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considered in Federal Rules of Civil Procedure 37(b) case in a Rule 41(b) case. 191 F.3d 983 (9th

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Cir. 1999). “Under our precedents, in order for a court to dismiss a case as a sanction, the district

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court must consider five factors: ‘(1) the public’s interest in expeditious resolution of litigation;

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(2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public

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policy favoring disposition of cases on their merits; and (5) the availability of less drastic

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alternatives.’” Yourish, 191 F.3d 983 at 990 (citing Hernandez v. City of El Monte, 138 F.3d 393,

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399 (9th Cir.1998) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.1986))). “We

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‘may affirm a dismissal where at least four factors support dismissal . . . or where at least three

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factors ‘strongly’ support dismissal.’” Id. (citing Hernandez v. City of El Monte, 138 F.3d 393,

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399 (9th Cir.1998)) (internal citation omitted.) “Although it is preferred, it is not required that the

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district court make explicit findings in order to show that it has considered these factors and we
ORDER – No. 14-cv-01741-LB

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may review the record independently to determine if the district court has abused its discretion.”

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Id. (internal citation omitted.) “The sub-parts of the fifth factor are whether the court has

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considered lesser sanctions, whether it tried them, and whether it warned the recalcitrant party

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about the possibility of case-dispositive sanctions.” Connecticut General Life Ins. Co. v. New

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Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007) (citing Valley Eng’rs v. Electric

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Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998)).15
“A terminating sanction, whether default judgment against a defendant or dismissal of a

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plaintiff’s action, is very severe.” Connecticut General Life Ins. Co., 482 F.3d at 1096. “Only

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‘willfulness, bad faith, and fault’ justify terminating sanctions.” Id. (quoting Jorgensen v.

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Cassiday, 320 F.3d 906, 912 (9th Cir. 2003)).

United States District Court
Northern District of California

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A party suffers sufficient prejudice to warrant case-dispositive sanctions where the disobedient

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party’s actions “impair the defendant’s ability to go to trial or threaten to interfere with the rightful

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decision of the case.” See in re Phenylpropanolamine (PPA) Products Liability Litigation, 460

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F.3d 1217, 1227 (9th Cir. 2006) (quotation omitted).

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Before ordering a terminating sanction, a court must warn the plaintiff and try other sanctions

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first. For example, a district court’s failure to warn a party that dismissal is being considered as a

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sanction weighs heavily against the sanction. U.S. for Use and Ben. of Wiltec Guam, Inc. v.

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Kahaluu Const. Co., Inc., 857 F.2d 600, 605 (9th Cir. 1988). Although “[a]n explicit warning is

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not always required, at least in a case involving ‘egregious circumstances,’” “[i]n other

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“This ‘test,’” the Ninth Circuit has explained, “is not mechanical.” Connecticut General, 482
F.3d at 1096. “It provides the district court with a way to think about what to do, not a set of
conditions precedent for sanctions or a script that the district court must follow:

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Like most elaborate multifactor tests, our test has not been what it appears to be, a
mechanical means of determining what discovery sanction is just. The list of factors
amounts to a way for a district judge to think about what to do, not a series of conditions
precedent before the judge can do anything, and not a script for making what the district
judge does appeal-proof.

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Valley Eng’rs, 158 F.3d at 1057.
ORDER – No. 14-cv-01741-LB

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circumstances, the failure to warn may place the district court’s order in serious jeopardy.” Id.

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(citing Malone, 833 F.2d at 132-33). Indeed, “‘[f]ailure to warn has frequently been a contributing

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factor in [Ninth Circuit] decisions to reverse orders of dismissal.’” Id. (quoting Malone, 833 F.2d

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at 133 (citing cases)).

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3.2 Monetary sanctions: Federal Rules of Civil Procedure 37(d)(3) and (b)(2)(C)

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Rules 37(d)(3) and (b)(2)(C) provide that courts must require the party failing to act, the
attorney advising that party, or both to pay to award the reasonable expenses, including attorney's

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fees, caused by the failure, unless the failure was substantially justified or other circumstances

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make an award of expenses unjust. “Under Rule 37(b)(2), which has the same language as Rule

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United States District Court
Northern District of California

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37(d), the burden of showing substantial justification and special circumstances is on the party

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being sanctioned.” Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir. 1994), as amended (July

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25, 1994) (citing Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 784 (9th Cir.1983))

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Federal courts use the lodestar method to determine a reasonable attorney’s fee award. Hensley

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v. Eckerhart, 461 U.S. 424, 433 (1983); Jordan v. Multnomah Cnty., 815 F.2d 1258, 1262 (9th

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Cir. 1987). The court calculates a “lodestar amount” by multiplying the number of hours counsel

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reasonably spent on the litigation by a reasonable hourly rate. See Morales v. City of San Rafael,

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96 F.3d 359, 363 (9th Cir. 1996). The burden of proving that claimed rates and number of hours

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worked are reasonable is on the party seeking the fee award. Blum v. Stenson, 465 U.S. 886, 897

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(1984). The court may adjust the award from the lodestar figure upon consideration of additional

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factors that may bear upon reasonableness. Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70 (9th

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Cir. 1975).

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3.3 Order to Appear on November 30, 2017, at 9:30 a.m. and Warning to Mr. Smith

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Because Mr. Smith has not been communicating with his attorney or otherwise participating in

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his lawsuit, the court orders him to appear in person at 450 Golden Gate Avenue, 15th Floor,

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Courtroom C, San Francisco, California, on November 30, 2017, at 9:30 a.m. If he does not, he

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risks the court’s imposition of sanctions, including a monetary sanction awardable to the
ORDER – No. 14-cv-01741-LB

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