Brown v. City of Antioch et al

Filing 38

Order by Magistrate Judge Laurel Beeler granting 30 Motion to Withdraw as Attorney.The court grants the plaintiff's counsel's motion to withdraw as attorney of record. The court resets the June 22, 2017 hearing to July 13, 2017, at 11:00 a.m., and directs the plaintiff's counsel to serve this order on him. The court also orders the plaintiff to appear in person at the July 13 hearing. (lblc1S, COURT STAFF) (Filed on 6/6/2017)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

San Francisco Division

United States District Court
Northern District of California

11
12

STACY BROWN,

Case No. 16-cv-05102-LB

Plaintiff,

13

ORDER GRANTING MOTION TO
WITHDRAW

v.

14
15

Re: ECF No. 30

CITY OF ANTIOCH, et al.,
Defendants.

16
17

INTRODUCTION

18

DeWitt Lacy moves to withdraw as counsel for the plaintiff, Stacy Brown, because Mr. Brown

19

“has completely withdrawn his participation” from the litigation.1 Mr. Lacy notified Mr. Brown of

20

his intention to withdraw by mail five times between December 12, 2016, and April 12, 2017, and

21

mailed the pending motion on May 17.2 Mr. Brown, however, did not respond.3 The defendants do

22

not oppose Mr. Lacy’s motion.4

23
24
Motion to Withdraw – ECF No. 30; Lacy Decl. – ECF No. 31, ¶ 2. 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.
1

25
26

2

See Motion at 3–4; Lacy Decl. ¶ 5.

27

3

See generally Docket.

28

4

Statement of Non-Opposition – ECF No. 36.

ORDER – No. 16-cv-05102-LB

1

The court can decide the matter without oral argument and vacates the June 22, 2017 hearing.

2

Civil L.R. 7-1(b). The court grants the motion because Mr. Brown’s failure to communicate

3

establishes good cause, and because Mr. Lacy has taken sufficient steps to alert Mr. Brown of his

4

intention to withdraw and to avoid possible harm stemming therefrom.

5
GOVERNING LAW

6
7

Under Civil Local Rule 11-5(a), “[c]ounsel 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

9

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

10

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

11
United States District Court
Northern District of California

8

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

12

Civil L.R. 11-5(b).

13

Withdrawal is governed by the California Rules of Professional Conduct. See Nehad v.

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

Assocs., Inc., No. C06-7828 TEH, 2007 WL 4328809, at *1 (N.D. Cal. Dec. 10, 2007).

27

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

28

United States v. Carter, 560 F.3d 1107, 1113 (9th Cir. 2009). Courts consider several factors when
ORDER – No. 16-cv-05102-LB

2

1

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

2

possible prejudice that withdrawal may cause to other litigants; (3) the harm that withdrawal might

3

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

4

of the case.” Deal v. Countrywide Home Loans, No. C 09-01643 SBA, 2010 WL 3702459, at *2

5

(N.D. Cal. Sept. 15, 2010).

6
ANALYSIS

7
8

1. Good Cause for Withdrawal
Good cause exists for Mr. Lacy’s withdrawal. Mr. Brown filed this case on September 2,

10

2016.5 But, “[s]ince that time, [he] has completely withdrawn his participation in the prosecution

11
United States District Court
Northern District of California

9

of th[e] matter, including responding to necessary discovery.”6 Indeed, Mr. Brown’s lack of

12

communication and participation has “severely hampered” the parties’ discovery efforts.7 It also

13

led Mr. Lacy to suggest modification of the court’s scheduling order to “continue efforts to locate

14

[Mr. Brown].”8 “Despite diligent attempts” and use of “every resource available to [him] in [his]

15

search for Mr. Brown[,] including contacting his family and friends,” Mr. Lacy has been unable to

16

contact Mr. Brown.9 The court has already granted the parties’ stipulated extension of the ADR

17

deadline due to Mr. Brown’s non-participation,10 and the parties now ask to vacate all upcoming

18

court deadlines for the same reasons.11

19
20
21
22
5

Compl. – ECF No. 1.

23

6

Lacy Decl. ¶ 3.

24

7

25

8

26

9

27

10

See ECF No. 26.

28

11

See Stipulation – ECF No. 37.

See Case Management Statement – ECF No. 23 at 2; Case Management Statement – ECF No. 32 at
2.
Case Management Statement – ECF No. 23 at 2.

See Case Management Statement – ECF No. 23 at 2; Case Management Statement – ECF No. 32 at
2; Lacy Decl. ¶¶ 2–4.

ORDER – No. 16-cv-05102-LB

3

Given Mr. Brown’s lack of communication and participation in the case, it is apparent that Mr.

1
2

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

3

good cause for withdrawal.

4
5

2. Timing and Prejudice of Withdrawal
Under the circumstances, Mr. Lacy has taken adequate measures to prevent reasonably

6
7

foreseeable harm to Mr. Brown and his withdrawal will not prejudice the defendants.

8

First, Mr. Lacy has given Mr. Brown enough time and sufficient opportunities to object to the

9

motion. Under Local Rule 11-5(a), Mr. Lacy informed Mr. Brown of his intention to withdraw as
counsel both verbally and in writing.12 Mr. Lacy mailed advance written notice of his intention

11
United States District Court
Northern District of California

10

five times: on December 12, 2016; January 10, 2017; January 18, 2017; March 16, 2017; and

12

April 12, 2017.13 He also mailed the pending motion to Mr. Brown on May 17.14 Yet Mr. Brown

13

did not respond and did not oppose the motion.

14

Second, Mr. Lacy’s withdrawal will not prejudice the defendants. The parties stipulated to

15

vacate “all hearing dates and filing/disclosure deadlines in this case” because of the delay caused

16

by Mr. Brown’s lack of communication.15 This may delay the resolution of the case, but it will

17

allow Mr. Brown time to find new counsel (or appear pro se), if he decides to participate in the

18

litigation. And, in any event, it is his failure to communicate — not Mr. Lacy’s withdrawal — that

19

will delay the resolution. The court is convinced that withdrawal at this juncture, along with a

20

continuation of deadlines, will not prejudice the defendants because they do not oppose Mr.

21

Lacy’s motion.16

22
23
24
12

Motion at 2.

13

Id. at 2–3.

14

Lacy Decl. ¶ 5.

27

15

Stipulation – ECF No. 37 at 2.

28

16

See Statement of Non-Opposition.

25
26

ORDER – No. 16-cv-05102-LB

4