Marci Patera v. Citibank, N.A. et al

Filing 35

ORDER by Magistrate Judge Jacqueline Scott Corley granting 30 Motion to Withdraw (ahm, COURT STAFF) (Filed on 3/9/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARCI PATERA,

Case No. 14-cv-04533-JSC

Plaintiff,
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v.

ORDER RE: MOTION TO WITHDRAW
AS COUNSEL FOR PLAINTIFF

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CITIBANK, N.A., et al.,

Re: Dkt. No. 30

Defendants.

United States District Court
Northern District of California

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Presently before the Court is the motion of Peter L. Kutrubes to withdraw as counsel of

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record for Plaintiff Marci Patera. (Dkt. No. 30.) Neither Plaintiff nor Defendants Citibank, N.A.,

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and CitiMortgage, Inc. have filed a response to the motion, although Plaintiff previously filed a

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pro se request for an extension of time to file her amended complaint indicating that she was

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aware of counsel’s desire to withdraw and requesting that counsel be relieved. After carefully

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considering the arguments and briefing submitted, the Court concludes that oral argument is

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unnecessary, see Civ. L.R. 7-1(b), vacates the March 19, 2015 hearing, and GRANTS the motion.

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Plaintiff filed this action in October 2014 seeking to prevent foreclosure of her home and

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alleging thirteen state law causes of action. The Court dismissed the complaint under Federal

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Rule of Civil Procedure 12(b)(6) for failure to state a claim and 12(b)(7) for failure to join a

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necessary and indispensable party with leave to amend on February 5, 2015. (Dkt. No. 27.)

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Plaintiff had until February 26 to file an amended complaint joining the co-borrower on the

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underlying mortgage loans as a party and addressing the issues with her legal claims. On

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February 12, 2015, Plaintiff filed a pro se request entitled “Request to Relieve Counsel and

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Request for Extension of Time to File First Amended Complaint” seeking to extend the deadline

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to file an amended complaint based on the fact that counsel had advised her of his intent to

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withdraw. (Dkt. No. 29.) Plaintiff’s counsel subsequently filed the now pending motion to

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withdraw on February 17, 2015. (Dkt. No. 30.) The parties also filed a stipulation extending the

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time for Plaintiff to file her amended complaint until March 28, 2015, which the Court approved.

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(Dkt. Nos. 31 & 32.)

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Under the Court’s Civil Local Rules, “[c]ounsel may not withdraw from an action until

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relieved by order of the Court after written notice has been given reasonably in advance to the

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client and to all other parties who have appeared in the case.” Civ. L.R. 11-5(a); Dist. Council No.

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16 No. Cal. Health & Welfare Trust Fund v. Lambard Enters., Inc., No. C 09-05189 SBA, 2010

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WL 3339446, at *1 (N.D. Cal. Aug. 24, 2010) (citations omitted). The Local Rule further
provides that “[w]hen withdrawal by an attorney from an action is not accompanied by

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United States District Court
Northern District of California

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simultaneous appearance of substitute counsel or agreement of the party to proceed pro se, leave to

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withdraw may be subject to the condition that papers may continue to be served on counsel for

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forwarding purposes, unless and until the client appears by other counsel or pro se.” Civ. L.R. 11-

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5(b).

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Here, Peter Kutrubes of the Law Offices of Peter L. Kutrubes has filed a sworn declaration

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attesting that “since executing the retainer agreement and paying her initial retainer, Plaintiff has

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failed to pay the minimum amount of fees owed. ... Since January 2015, I made it increasingly

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clear to Plaintiff that I could not continue to represent her without her making arrangements to pay

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her past due legal fees and the fees that she was incurring on an ongoing basis. Plaintiff was

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unable to make such arrangements. ... At present, Plaintiff owes me a significant amount of fees,

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and to continue to represent her given the demands of Plaintiff and her case without adequate

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remuneration would constitute a severe financial hardship on me and my firm.” (Dkt. No. 30-1 ¶¶

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4-5, 8.) Further, it appears that Plaintiff does not oppose counsel’s request to withdraw as she

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filed her own motion requesting that counsel be relieved and did not respond to counsel’s motion

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to withdraw. The Court concludes that these reasons support a finding of good cause to grant

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Plaintiff’s counsel’s leave to withdraw representation.

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Accordingly, the Peter L. Kutrubes’ motion to withdraw is hereby GRANTED. The Clerk
shall amend the docket to reflect that Plaintiff is proceeding pro se and update the docket to reflect
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the following address for her: Marci Patera, PO BOX 968 Alamo, California 94507,

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[phone]. Plaintiff is obligated to keep the Court informed of her current address.

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The Case Management Conference is reset for May 7, 2015, at 1:30 p.m., in Courtroom F,

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15th Floor, U.S. District Court, 450 Golden Gate, San Francisco, California. The parties shall file

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a Joint Case Management Conference Statement by April 30, 2015.

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Plaintiff’s first amended complaint remains due March 28, 2015. As Plaintiff is proceeding

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pro se, the Court directs her attention to the Handbook for Pro Se Litigants, which is available

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along with further information for the parties on the Court’s website located at

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http://cand.uscourts.gov/proselitigants. Plaintiff may also contact the Legal Help Center, 450
Golden Gate Avenue, 15th Floor, Room 2796, Telephone No. (415)-782-8982, for free assistance

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United States District Court
Northern District of California

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regarding her claims.

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Mr. Kutrubes shall serve a copy of this Order on Plaintiff within three days and shall file
proof of service with this Court.

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This Order disposes of Docket Nos. 30.

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IT IS SO ORDERED.

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Dated: March 9, 2015
______________________________________
Jacqueline Scott Corley
United States Magistrate Judge

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