Swapna v. Deshraj

Filing 33

ORDER by Magistrate Judge Jacqueline Scott Corley granting 27 Motion to Withdraw as Attorney. ; granting 28 Administrative Motion to File Under Seal. (ahm, COURT STAFF) (Filed on 7/11/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ARUNASREE SWAPNA,
Plaintiff,

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United States District Court
Northern District of California

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Case No.16-cv-05482-JSC
PLAINTIFF’S COUNSEL’S MOTION
TO WITHDRAW

v.
UDAY KRISHNA DESHRAJ,

Re: Dkt. No. 27

Defendant.

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Now pending before the Court is the motion for Plaintiff’s Counsel Kronenberger

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Rosenfeld to withdraw as counsel for Plaintiff Arunasree Swapna. (Dkt. No. 27.) Ms. Swapna

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has not responded to the motion despite an order directing her to do so and Defendant has filed a

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statement of non-opposition to the motion. (Dkt. Nos. 30 & 31.) After carefully considering

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Plaintiff’s counsel’s motion, the Court concludes that oral argument is unnecessary, see Civ. L.R.

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7–1(b), and GRANTS the motion as set forth below.

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LEGAL STANDARD

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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

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that “[w]hen withdrawal by an attorney from an action is not accompanied by simultaneous

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

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

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purposes, unless and until the client appears by other counsel or pro se.” Civ. L.R. 11–5(b).

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The decision to permit withdrawal of counsel is within the trial court’s discretion. See

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United States v. Carter, 560 F.3d 1107, 1113 (9th Cir. 2009) When considering motions to

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withdraw, “the consent of the client is not dispositive.” Robinson v. Delgado, 2010 WL 3259384,

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at *2 (N.D. Cal. Aug. 18, 2010). Rather, courts consider (1) the reasons counsel seeks to

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withdraw; (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. See Deal v. Countrywide Home Loans, 2010 WL 3702459, at *2
(N.D. Cal. Sept. 15, 2010). “Ultimately, a ruling on a motion to withdraw must involve a

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United States District Court
Northern District of California

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balancing of the equities.” Robinson, 2010 WL 3259384, at *2 (internal citation and quotation

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marks omitted).

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In this District, courts also consider the standards of professional conduct required of

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members of the State Bar of California when determining whether counsel may withdraw

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representation. See, e.g., U.A. Local 342 Joint Labor–Mgmt. Comm. v. So. City Refrigeration,

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Inc., No. 09–3219, 2010 WL 1293522, at *3 (N.D. Cal. Mar. 31, 2010); Cal. Native Plant Soc’y v.

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U.S. EPA, No. 06–3604, 2008 WL 4911162, at *1 (N.D. Cal. Nov. 14, 2008). Under California

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Rule of Professional Conduct 3–700(C)(1)(d), an attorney may request permission to withdraw on

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the basis of “conduct [that] renders it unreasonably difficult for the [attorney] to carry out the

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

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DISCUSSION
Plaintiff’s counsel seeks to withdraw because he maintains that fundamental differences

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have arisen between counsel and Plaintiff such that continued representation is unreasonably

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difficult. In particular, counsel cites the following difficulties: (1) Plaintiff has disregarded

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Kronenberger Rosenfeld’s case strategies and advice; (2) Plaintiff has assessed the strength of her

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case far differently than has Kronenberger Rosenfeld and adopted expectations on the timing and

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scope of resolving the case that differ from Kronenberger Rosenfeld’s expectations; (3) Plaintiff

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has asked Kronenberger Rosenfeld to pursue discovery and claims that are not justified by law;
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and (4) Plaintiff has resisted fulfilling her obligations as a litigant before this Court. (Dkt. No. 28

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at 3:8-17.)

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In support of the motion to withdraw counsel has submitted two declarations from

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Plaintiff’s counsel Jeffrey Rosenfeld, one of which attaches emails between counsel and Plaintiff.

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(Dkt. No. 28-1.) Because these emails reflect confidential attorney client communications, the

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motion is accompanied by a request to file portions of the motion, the first declaration of Jeffrey

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Rosenfeld, and the exhibits thereto under seal. (Dkt. No. 28.) The unopposed motion to seal is

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GRANTED as these matters are properly sealable. See Civil L.R. 79-5(b). These communications

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reflect pervasive ongoing difficulties in the attorney-client relationship. (Dkt. No. 28-28,
Rosenfeld Decl. at ¶¶ 2-16; Dkt. Nos. 28-4 – 28-20 (email communications between counsel and

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United States District Court
Northern District of California

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Plaintiff.) Plaintiff was served with a copy of the motion to withdraw and the Court directed to

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her to file a response, but she has not done so. (Dkt. No. 27-1 at ¶ 6; Dkt. No. 33.) Further, in the

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last few months Plaintiff has “become unreceptive to any communications from Kronenberger

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Rosenfeld, whether those communications reflect litigation strategies or Ms. Swapna’s obligations

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to the Court, counsel, and Defendant.” (Dkt. No. 27 at 3:19-22; Dkt. No. 27-1, Rosenfeld Decl. at

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¶ 16.; Dkt No. 32-1, Reply Rosenfeld Decl. at ¶¶ 2-3.)

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Plaintiff’s failure to maintain regular contact with her counsel and refusal to assist counsel

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in fulfilling her discovery obligations and cooperate in moving the litigation forward constitutes

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good cause for withdrawal. The lack of a cooperative relationship between an attorney and his

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client may justify the attorney’s withdrawal. See, e.g., U.A. Local 342, 2010 WL 1293522, at *3;

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McClintic v. U.S. Postal Serv., No. 13–cv00439, 2014 WL 51151, at *3 (E.D. Cal. Jan. 7, 2014)

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(collecting cases in which a client’s failure to cooperate or communicate effectively with counsel

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justified the attorney’s motion to withdraw). However, “withdrawal is only proper if the client’s

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interest will not be unduly prejudiced or delayed.” McClintic, 2014 WL 51151, at *2 (citation

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omitted).

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Kronenberger Rosenfeld has taken “reasonable steps to avoid reasonably foreseeable

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prejudice to the rights of the client.” See Cal. R. Prof. Conduct 3–700(A). Counsel first attempted

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to resolve the dispute between counsel and Plaintiff, “[h]owever, as time continued, Ms. Swapna
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became more entrenched in her various positions, with which [counsel] disagreed.” (Dkt. No. 27-

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1 ¶ 16.) Once counsel determined that he could no longer represent Ms. Swapna, he offered to

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obtain replacement counsel for Plaintiff, but she declined. (Dkt. No. 27 at 4:8-10.) Although the

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communications attached to the motion reflect that Plaintiff objects to her counsel’s withdrawal,

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having reviewed totality of communications the Court concludes that continued representation by

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Kronenberger Rosenfeld would indeed be unreasonably difficult and that counsel has complied

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with his professional responsibilities to attempt to work with Plaintiff to find replacement counsel,

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but Plaintiff has resisted all such efforts. See, e.g., Castro v. City of Union City, No. 14-CV-

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00272-MEJ, 2016 WL 6873455, at *2 (N.D. Cal. Nov. 22, 2016) (concluding that withdrawal was

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appropriate where “the client relationship has deteriorated beyond repair and is no longer based on

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United States District Court
Northern District of California

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mutual trust and confidence.”).

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Finally, Defendant, who does not oppose the motion to withdraw, will not be prejudiced by

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withdrawal because trial is not until March 26, 2018. Further, Defendant’s opposition suggests his

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willingness to stay discovery and reset the case deadlines to allow Plaintiff to obtain replacement

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counsel should Kronenberger Rosenfeld be permitted to withdraw. (Dkt. No. 30 at 2:20-26.) This

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may delay the resolution of the case, but it will allow Ms. Swapna time to find new counsel (or

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appear pro se). Thus, the court is convinced that withdrawal at this juncture, along with a

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continuation of deadlines, will not prejudice Defendant.

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In sum, the Court concludes the circumstances here make it “unreasonably difficult for the

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[counsel] to carry out the employment effectively” such that withdrawal is appropriate. Cal. Rule

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of Prof. Conduct 3-700(C)(1)(d).

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CONCLUSION
For the reasons stated above, Kronenberger Rosenfeld’s Motion to Withdraw as Counsel

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for Plaintiff is GRANTED. (Dkt. No. 27.) Kronenberger Rosenfeld must continue to serve all

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papers from the Defendant and the Court on Ms. Swapna until she files a substitution of counsel or

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appears pro se. See Civil L.R. 11-5(b) (“When withdrawal by an attorney from an action is not

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accompanied by simultaneous appearance of substitute counsel or agreement of the party to appear

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pro se, leave to withdraw may be subject to the condition that papers may continue to be served on
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counsel for forwarding purposes, unless and until the client appears by other counsel or pro se.”).

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Kronenberger Rosenfeld must inform Ms. Swapna of this condition. See id. (“When this condition

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is imposed, counsel must notify the party of this condition.”). Kronenberger Rosenfeld shall serve

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this Order on Ms. Swapna and file proof of service of the same within four days.

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Given counsel’s withdrawal, the Court stays the discovery deadlines and advances the

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Case Management Conference to July 27, 2017 at 1:30 p.m. in Courtroom F, 450 Golden

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Gate Ave., San Francisco, California. Ms. Swapna may contact the Courtroom Deputy at

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415.522.2015 to make arrangements to appear telephonically at the Case Management

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Conference. Ms. Swapna must file a statement evidencing her intent to either appear pro se

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United States District Court
Northern District of California

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or obtain substitution of counsel by July 21, 2017.
As Ms. Swapna is now proceeding pro se, the Court directs her attention to the Handbook

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for Litigants Without a Lawyer, which is available free of charge in the Clerk’s Office or online at

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http://cand.uscourts.gov/prosehandbk. Ms. Swapna may also wish to seek assistance from the

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Legal Help Center, a free service of the Volunteer Legal Services Program, by calling 415-782-

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8982, or by signing up for an appointment on the 15th Floor of the Federal Courthouse in San

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Francisco, 450 Golden Gate Avenue, San Francisco, California. At the Legal Help Center, she will

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be able to speak with an attorney who may be able to provide basic legal help but not

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representation. More information is available at http://cand.uscourts.gov/helpcentersf.

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This Order disposes of Docket Nos. 27 & 28.

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IT IS SO ORDERED.
Dated: July 11, 2017

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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