ALEJANDRO SANCHEZ et al v. OCEANSIDE INVESTMENTS, INC. et al

Filing 46

ORDER by Judge Maria-Elena James granting 40 Motion to Withdraw as Attorney as instructed. (mejlc2S, COURT STAFF) (Filed on 10/31/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALEJANDRO SANCHEZ, et al.,

Case No. 15-cv-03453-MEJ

Plaintiffs,
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ORDER GRANTING MOTION TO
WITHDRAW AS COUNSEL

v.
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OCEANSIDE INVESTMENTS, INC., et al.,

Re: Dkt. No. 40

Defendants.
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United States District Court
Northern District of California

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INTRODUCTION

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On September 23, 2016, the Mellen Law Firm filed a Motion to Withdraw as Counsel for

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Defendants and Counter-Claimants Gable Jackson Payne and Jeffe Payne Leffler (“Defendants”).

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Mot., Dkt. No. 40. No opposition has been filed. See Dkt. No. 41 (statement by Mellen Law Firm

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that no opposition received as of October 14, 2016). The Court finds this matter suitable for

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disposition without oral argument and VACATES the December 1, 2016 hearing. See Fed. R.

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Civ. P. 78(b); Civ. L.R. 7-1(b). Having considered the record in this case and relevant legal

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authority, the Court GRANTS the Motion for the reasons set forth below.

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BACKGROUND

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Matthew Mellen of the Mellen Law Firm represents there has been an irretrievable

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breakdown of communication between his firm and Defendants. Declaration of Matthew Mellen

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(“Mellen Decl.”) ¶ 2, Dkt. No. 41-1; see also Mot. at 1. Mellen indicates that further description

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of details leading to this point could jeopardize the attorney-client privilege but asserts that “the

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continued representation of these Defendants will ultimately result in a conflict of interest.”

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Mellen Decl. ¶¶ 3-4. He explains “the breakdown of communication has made it so that it has

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become unreasonably difficult for the Mellen Law Firm to carry out its employment effectively.”

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Id. ¶ 3.

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Mellen attests that “Defendants have been notified that the Mellen Law Firm would be

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bringing a Motion to be Relieved as Counsel on numerous occasions, via email and telephone.”

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Id. ¶ 5. He further notes this “Motion was served on Defendants at their last known address on

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September 23, 2016 via US mail.” Id.; see also Certificate of Serv., Dkt. No. 40-3.

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Finally, Mellen argues that withdrawal of counsel is in the interest of justice and will not

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prejudice Defendants, as they have already filed an Answer to the Complaint and no dispositive

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motions are currently pending in this action. Mot. at 2. Discovery closes in this action on

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December 20, 2016. See Scheduling Order, Dkt. No. 34.

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The Court previously denied the firm’s first motion to withdraw as counsel for these
Defendants as well as another Defendant, Oceanside Investments, Inc. (“Oceanside”) (Dkt. No.

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United States District Court
Northern District of California

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23), on the ground that a corporation like Oceanside may only appear through a member of the bar

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of this Court. Order, Dkt. No. 29. The Mellen Law Firm has recently clarified it will continue

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representing Oceanside in this action if allowed to withdraw as counsel for the other Defendants.

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Suppl. Br., Dkt. No. 44.

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LEGAL STANDARD
The Court’s Civil Local Rules authorize an attorney to withdraw as counsel of record if:

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(1) written notice has been given reasonably in advance to the client and all other parties in the

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action; and (2) the attorney obtains leave of Court. Civ. L.R. 11-5(a). In this District, the

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withdrawal of counsel is governed by the standards of professional conduct required of members

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of the State Bar of California. Civ. L.R. 11-4(a)(1); see Nehad v. Mukasey, 535 F.3d 962, 970 (9th

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Cir. 2008) (applying California Rules of Professional Conduct to attorney withdrawal). California

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Rule of Professional Conduct 3-700(C) enumerates grounds pursuant to which counsel may

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properly seek to withdraw from representation. One of these grounds is that “[t]he client . . . by

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other conduct renders it unreasonably difficult for the member to carry out the employment

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effectively.” Cal. Rule of Prof. Conduct 3-700(C)(1)(d).

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

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United States v. Carter, 560 F.3d 1107, 1113 (9th Cir. 2009). “Courts consider several factors

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when considering a motion for withdrawal, including: (1) the reasons counsel seeks to withdraw;
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(2) the possible prejudice that withdrawal may cause to other litigants; (3) the harm that

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

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will delay resolution of the case.” Atkins v. Bank of Am., N.A., 2015 WL 4150744, at *1 (N.D.

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Cal. July 9, 2015) (citing Deal v. Countrywide Home Loans, 2010 WL 3702459, at *2 (N.D. Cal.

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Sept. 15, 2010)).

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Counsel shall not withdraw from employment before taking steps to avoid reasonably

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

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time for employment of other counsel, complying with Rule 3-700(D) (regarding papers), and

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complying with applicable laws and rules. See Cal. R. Prof. Conduct 3-700(A)(2); El Hage v. U.S.
Sec. Assocs., Inc., 2007 WL 4328809, at *1 (N.D. Cal. Dec. 10, 2007). Further, “[w]hen

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United States District Court
Northern District of California

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withdrawal by an attorney from an action is not accompanied by simultaneous appearance of

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substitute counsel or agreement of the party to appear pro se, leave to withdraw may be subject to

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the condition that papers may continue to be served on counsel for forwarding purposes . . . unless

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and until the client appears by other counsel or pro se.” Civ. L.R. 11-5(b).
DISCUSSION

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Based on the record in this case, the Court shall allow the Mellen Law Firm to withdraw as

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counsel for Gable Jackson Payne and Jeffe Payne Leffler. Counsel has provided a supporting

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declaration explaining the breakdown in communication and the attorney-client relationship,

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which makes it unreasonably difficult to effectively carry out the firm’s employment and duties.

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Despite being served with this Motion, neither Plaintiffs nor any of the Defendants have objected

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or otherwise responded, which indicates any possible prejudice caused by the withdrawal is likely

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minimal. The possibility of prejudice also is mitigated by the fact the parties have several more

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weeks to conduct discovery and dispositive motions are not due until January 19, 2017. See

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Scheduling Order. Finally, the Court finds no meaningful harm that withdrawal might cause to the

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administration of justice or particular risk of delay to resolution of the case. See Atkins, 2015 WL

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4150744, at *1. The Court also finds that the Mellen Law Firm has complied with its obligations

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under California Rule of Professional Conduct 3-700(A)(2). In sum, the Court finds withdrawal

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acceptable under the circumstances.
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CONCLUSION

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For the reasons stated above, the Court GRANTS the Mellen Law Firm’s Motion to

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Withdraw as Counsel for Defendants and Counter-Claimants Gable Jackson Payne and Jeffe

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Payne Leffler. However, because Defendants have not consented to the withdrawal and no

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substitution of counsel has been filed on their behalf, the Motion is granted on the condition that

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all papers from the Court and from other parties shall continue to be served on Gable Jackson

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Payne and Jeffe Payne Leffler for forwarding purposes until a substitution of counsel is filed as

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provided by Civil Local Rule 11-5(b). For all such documents, the Mellen Law Firm shall e-file

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proof of service upon Gable Jackson Payne and Jeffe Payne Leffler. No chambers copy is

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United States District Court
Northern District of California

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required.
As Gable Jackson Payne and Jeffe Payne Leffler are now proceeding pro se, the Court

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directs their attention to the Handbook for Litigants Without a Lawyer, which is available free of

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charge in the Clerk’s Office or online at http://cand.uscourts.gov/prosehandbk. They may also

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wish to seek assistance from the Legal Help Center, a free service of offered by the Justice &

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Diversity Center of the Bar Association of San Francisco, by calling 415-782-8982, or by signing

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up for an appointment on the15th Floor of the Federal Courthouse in San Francisco, 450 Golden

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Gate Avenue, San Francisco, California. At the Legal Help Center, you will be able to speak with

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an attorney who may be able to provide basic legal help but not representation. More information

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is available at http://cand.uscourts.gov/helpcentersf.

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IT IS SO ORDERED.

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Dated: October 31, 2016
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MARIA-ELENA JAMES
United States Magistrate Judge

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