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)

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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 Brown 19 “has completely withdrawn his participation” from the litigation.1 Mr.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

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