Attebury v. Triple Star LLC et al

Filing 41

ORDER requesting supplemental briefing and setting a hearing re 34 MOTION TO WITHDRAW AS COUNSEL filed by counsel for Reginald Attebury. Plaintiff's counsel shall file a supplemental brief of no more than ten (10) pages by on or b efore June 26, 2015. A hearing on Plaintiff's counsel's motion will be held on July 10, 2015 at 10:00 AM in Courtroom 1, 17th Floor, San Francisco Courthouse. Signed by Judge Samuel Conti on June 19, 2015. (sclc1S, COURT STAFF) (Filed on 6/19/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court

For the Northern District of California

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REGINALD ATTEBURY,

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Plaintiff,
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v.
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TRIPLE STAR LLC, et al.,

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Defendants.

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Case No. 14-CV-03039-SC
ORDER REQUESTING SUPPLEMENTAL
BRIEFING AND SETTING A HEARING
RE: PLAINTIFF'S COUNSEL'S
MOTION TO WITHDRAW AS COUNSEL

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I. INTRODUCTION
This case involves a seaman’s personal injury action involving

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injuries Plaintiff Reginald Attebury ("Plaintiff") allegedly

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sustained on or about April 21, 2012 on a fishing vessel owned by

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Defendants Triple Star LLC and Does 1-5 ("Triple Star").

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before the Court is Plaintiff's counsel's Motion to Withdraw as

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Counsel.

Now

ECF No. 34-1 ("Mot. to Withdraw").

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II. BACKGROUND AND LITIGATION HISTORY
On October 3, 2014, Triple Star served written discovery

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requests to Plaintiff seeking, among other things, the production

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of Plaintiff’s medical, tax, and Social Security earnings records

Plaintiff verbally agreed during a February 6, 2015 Case Management

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Conference to produce the signed releases.

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Compel") at 2.

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forwarded a release form to Plaintiff's counsel, and Plaintiff's

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counsel responded by stating: "I will mail this to Mr. Attebury and

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request that he sign it.

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United States District Court

and/or signed releases for those records.

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For the Northern District of California

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Triple Star claims that

hospitalized, and I have not been able to get in touch with him."

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Id. at 3.

ECF No. 32 ("Mot. to

On February 24, 2015, Triple Star's counsel

However, the last I heard he was

Plaintiff did not return the releases.

On May 19, 2015,

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Triple Star's counsel wrote to Plaintiff's counsel asking to meet

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and confer regarding the outstanding discovery issues.

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counsel wrote back the same day stating: "Please be advised that I

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am now in the process of preparing a substitution of counsel.

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Attebury will be representing himself pro per until he is able to

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secure other counsel."

Plaintiff's

Mr.

Id.

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On May 28, 2015, Triple Star filed a letter to Magistrate

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Judge Vadas seeking an order compelling Plaintiff to provide signed

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medical, tax, and Social Security Administration earnings releases,

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or, alternatively, an order requiring the Plaintiff to meet and

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confer.

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On June 2, 2015, Judge Vadas issued an order requiring the

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parties to meet and confer on the outstanding discovery requests on

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or before June 9, 2015.

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were unable to reach a resolution during the meet and confer, the

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MTC Order further required the parties to submit a joint letter

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brief on or before June 12, 2015.

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"the court instructs counsel for Plaintiff that the filing of a

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motion to withdraw from this action will not relieve him from the

ECF No. 33 ("MTC Order").

If the parties

The MTC Order also stated that

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requirements of this order."

Id.

On June 2, 2015, Plaintiff’s counsel filed a Motion to
Withdraw as Counsel.

The motion states:

Due to a breakdown of the attorney client relationship
between the Plaintiff and attorneys of record, Brodsky
Micklow Bull & Weiss LLP, Counsel can no longer fulfill
the legal and ethical duties they owe to their client,
Mr. Attebury, nor are they able to fulfill their
obligations to the Court or to the opposing parties and
their attorneys.

United States District Court

For the Northern District of California

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Mot. to Withdraw at 1-2.

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details, however, as to the nature of the "breakdown of the

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Plaintiff's counsel did not provide any

attorney client relationship."

Id.

On June 15, 2015, the parties filed a stipulated request to

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continue the trial and pretrial deadlines.

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continuance on June 18, 2015 in order to allow Triple Star

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sufficient time to obtain the sought-after discovery and avoid

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prejudice to Plaintiff by allowing him sufficient time to retain

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new counsel, if necessary, without running afoul with the current

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deadlines.

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set for March 28, 2016.

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The Court granted a

Discovery is now due by January 8, 2016, and trial is

Pursuant to Judge Vadas' MTC Order, Triple Star filed a letter

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brief on June 18, 2015.

It was filed unilaterally because "it

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could not agree to the form of the brief with Plaintiff's counsel."

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ECF No. 38 ("Triple Star Letter") at 2.

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Star Letter, the parties conducted a meet and confer on June 5,

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2015 during which Plaintiff's counsel authorized Triple Star's

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counsel to speak with Plaintiff directly to obtain the requested

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records or releases.

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to Plaintiff on June 5, 2015.

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Triple Star's counsel and stated that he would sign the releases

According to the Triple

Triple Star then sent blank releases directly
On June 9, 2015, Plaintiff called

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and return them.

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III. LEGAL STANDARD
Civil Local Rule 11-5(a) prohibits counsel from withdrawing

the withdrawal, and (2) written notice has been given reasonably in

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advance to the client and to all other parties.

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United States District Court

from an action until (1) the Court has issued an order permitting

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For the Northern District of California

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applies where, as here, withdrawal is not accompanied by

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simultaneous appearance of substitute counsel or agreement of the

Rule 11-5(b)

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party to appear pro se.

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withdrawal subject to the condition that papers may continue to be

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served on withdrawing counsel until the client appears by other

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counsel.

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That Rule authorizes the Court to permit

In this District, standards of professional conduct for

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attorneys are governed by the rules established by the State Bar of

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California.

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v. EPA, C 06-3604 PJH, 2008 WL 4911162, at *1 (N.D. Cal. Nov. 14,

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2008) ("In this district, the conduct of counsel, including

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withdrawal of counsel, is governed by the standards of professional

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conduct required of members of the State Bar of California.").

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Civ. L.R. 11-4(a)(1); see also Cal. Native Plant Soc'y

California Rule of Professional Conduct 3-700(A)(2) states

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that counsel “shall not withdraw from employment until the member

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has taken reasonable steps to avoid reasonably foreseeable

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prejudice to the rights of the client, including giving due notice

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to the client, allowing time for employment of other counsel,

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complying with rule 3-700(D) [regarding papers], and complying with

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applicable laws and rules.”

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California Rule of Professional Conduct 3-700(C) permits an

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attorney to request permission to withdraw if the client renders

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the representation unreasonably difficult, continued representation

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is likely to result in a violation of the rules, or the attorney

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believes that the court will find other good cause.

withdraw include: 1) the reasons why withdrawal is sought; 2) the

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prejudice withdrawal may cause to other litigants; 3) the harm

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United States District Court

“Factors which courts consider in ruling on a motion to

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For the Northern District of California

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withdrawal might cause to the administration of justice; and 4) the

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degree to which withdrawal will delay the resolution of the case.”

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Riese v. Cnty. of Del Norte, 12-CV-03723-WHO, 2013 WL 6056606 (N.D.

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Cal. Nov. 14, 2013) (citing Canandaigua Wine Co., Inc. v. Edwin

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Moldauer, No. 1:02-cv-06599 OWW DLB, 2009 WL 89141 (E.D. Cal. Jan.

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14, 2009)).

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the sound discretion of the trial court.”

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Enterprises, LLC, No. 10-5223 SBA, 2013 WL 942578 (N.D. Cal. Mar.

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11, 2013) (citing United States v. Carter, 560 F.3d 1107, 1113 (9th

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Cir. 2009)).

“The decision to permit counsel to withdraw is within
BSD, Inc. v. Equilon

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IV. DISCUSSION
Plaintiff's counsel states in his declaration that "[o]n May

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13, 2015, [Plaintiff's counsel] advised Mr. Attebury that

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[Plaintiff's counsel] would be filing a motion to withdraw as

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counsel."

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counsel does not indicate, however, whether Mr. Attebury was

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notified in writing pursuant to Civil Local Rule 11-5(a).

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Plaintiff's counsel does not provide any reasons why withdrawal is

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sought, other than a general statement that "[a] breakdown in the

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attorney client relationship . . . has occurred which makes it

ECF No. 34-2 ("Micklow Decl.") at 2.

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Plaintiff's

Further,

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impossible for Counsel to continue to fulfill the legal and ethical

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duties owed to the Plaintiff."

Micklow Decl. at 1.

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V. CONCLUSION
For the reasons described above, the Court finds that

Plaintiff's counsel shall file a supplemental brief of no more than

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United States District Court

additional briefing and a hearing is necessary.

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For the Northern District of California

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Accordingly,

ten (10) pages on or before June 26, 2015.

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provide additional information on the following items: (1) whether

That brief should

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Mr. Attebury was notified in writing as to Plaintiff's counsel's

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motion to withdraw as counsel; (2) further details on the reasons

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withdrawal is being sought; (3) whether Mr. Attebury was fully

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informed regarding the parties' stipulated motion for a continuance

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(ECF No. 37); (4) whether Mr. Attebury fully consented to the

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stipulated motion for a continuance; and (5) the nature and form of

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Mr. Attebury's consent to the stipulated motion for a continuance.

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A hearing on Plaintiff's counsel's motion will be held on July

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10, 2015 at 10:00 AM in Courtroom 1, 17th Floor, San Francisco

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Courthouse.

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IT IS SO ORDERED.

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Dated: June 19, 2015

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UNITED STATES DISTRICT JUDGE

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