Silverman v. The City and County of San Francisco et al

Filing 95

ORDER by Judge ARMSTRONG denying 81 Motion to Continue; denying 90 Motion to Stay; denying 91 Motion to Withdraw as Attorney. (lrc, COURT STAFF) (Filed on 12/3/2012)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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JACOB SILVERMAN,
Plaintiff,

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vs.

Case No: C 11-1615 SBA
ORDER
Docket 81, 90, 91

THE CITY AND COUNTY OF SAN

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Defendants.

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The parties are presently before the Court on Plaintiff Jacob Silverman's ("Plaintiff")

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administrative motion for a two-month continuance of the jury trial date and all associated

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dates under Civil Local Rule 7-11 and Rule 16 of the Federal Rules of Civil Procedure.

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Dkt. 81.1 The City and County of San Francisco and various law enforcement officers

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(collectively, "Defendants") oppose Plaintiff's administrative motion for a continuance.

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Dkt. 85. Also before the Court is Plaintiff's administrative motion to stay proceedings, and

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the Law Office of Green & Green, LLP's ("Green & Green") ex parte application to

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withdraw as counsel of record for Plaintiff. Dkt. 90, 91. Defendants have not filed an

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opposition or statement of non-opposition to Plaintiff's administrative motion to stay

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proceedings or to Green & Green's ex parte application to withdraw as counsel of record for

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Plaintiff as required by Civil Local 7-3(b). Having read and considered the papers filed in

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connection with these matters and being fully informed, the Court hereby DENIES

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Alternatively, Plaintiff requests, without citation to evidence or legal analysis,
"remedial remedies" such as an order precluding any testimony at trial of a defendant who
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Plaintiff's administrative motion for a continuance, DENIES Plaintiff's administrative
motion to stay proceedings, and DENIES Green & Green's ex parte application to withdraw
as counsel of record for Plaintiff, for the reasons stated below.
I.

DISCUSSION
A.

Administrative Motion for a Continuance

Plaintiff's administrative motion for a continuance seeks a two-month continuance of
the jury trial date and all associated dates. Dkt. 81. Plaintiff's motion, however, is an
improper administrative motion under Civil Local Rule 7-11 because the relief Plaintiff
seeks is not within the category of "miscellaneous administrative matters, not otherwise
governed by a federal statute, federal or local rule or standing order of the assigned judge,"
as required by Civil Local Rule 7-11.2 Plaintiff offers no authority to support his attempted
use of Civil Local Rule 7-11. Indeed, a motion for a continuance, which seeks to modify a
pretrial scheduling order must be brought pursuant to Civil Local Rule 6-3 and satisfy the
good cause standard under Rule 16. A request that fails to comport with procedures set
forth in a district court's local rules may be summarily denied. See Grove v. Wells Fargo
Fin. Cal., Inc., 606 F.3d 577, 582 (9th Cir. 2010) (upholding district court's denial of
motion to tax costs which was not in compliance with the court's local rules).
Furthermore, Plaintiff's administrative motion does not comply with the meet and
confer requirement set forth in this Court's Standing Orders. See Standing Orders ¶ 5. In
the declaration filed in support of the instant motion, Plaintiff's counsel attests that he
"inquired" whether defense counsel would jointly move to continue the trial and associated
dates. Swanson Decl. ¶ 15. Defense counsel submitted a declaration indicating that this
"inquiry" was an e-mail at approximately 5:00 p.m. on Friday October 19, 2012, advising
Defendants that Plaintiff intends on filing a unilateral request for a continuance of the trial
date and associated dates if defense counsel fails to respond to his request for the parties to

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Proper administrative motions include "matters such as motions to exceed
otherwise applicable page limitations or motions to file documents under seal." Civ. L.R.
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file a joint request for a continuance by Monday morning. See Baumgartner Decl. ¶ 24,
Exh. D. The e-mail sent by Plaintiff's counsel states:

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In light of the recent discovery you just provided, your inability to schedule
critical depositions prior to the date discovery is set to close, your failure to
provide videos related to the incidents on April 14 and 22, the policies
related to the videos, and the failure to provide housing logs, I see no other
alternative but to request that the Court continue the trial date and all other
associated dates. I feel it necessary to notice all depositions to be completed
prior to the October 31 deadline in order to be safe in the event we do not
get the necessary continuance. To that end, please consider this a meet and
confer request for us to engage in a joint request for a continuance of the
trial date and associated dates.
....

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If I do not hear from you Monday morning I will have no choice but to file a
unilateral request for relief.

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Id.
On Monday October 22, 2012, defense counsel responded by e-mail and regular

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mail, stating that she does not object to continuing the trial date or the date for expert

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disclosure, but is unwilling to agree to allow discovery beyond the discovery cut-off date

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except for certain depositions the parties had already agreed to. Baumgartner Decl. ¶ 25,

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Exh. E. Plaintiff filed the instant motion on October 22, 2012. Dkt. 81.

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Given the length of the continuance requested by Plaintiff and the Defendants'

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representation that they do not oppose continuing the trial date or the expert disclosure date

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and are amenable to allowing certain fact discovery to take place after the close of fact

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discovery, it appears that the parties could have resolved many, if not all, of the issues

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giving rise to the instant motion had they met and conferred in person or by telephone prior

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to the filing of the motion. As contemplated by the Court's Standing Orders, until such

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time as the parties have meaningfully met and conferred to discuss the issues giving rise to

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the instant motion, it is premature to conclude that there exists a dispute which requires the

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Court's intervention. The meet and confer requirement is essential to conserving the

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limited time and resources of the Court and the parties by obviating the filing of

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unnecessary motions.

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Accordingly, for the reasons stated above, Plaintiff's administrative motion for a
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continuance is DENIED without prejudice. Plaintiff's alternative request for "remedial

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remedies," such as an order precluding any testimony at trial of a Defendant who refuses to
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attend their noticed deposition, is DENIED. Because this request is not supported by
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citation to authority and legal analysis, it lacks merit. See Indep. Towers of Wash. v.
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Wash., 350 F.3d 925, 929 (9th Cir. 2003) ("Our adversarial system relies on the advocates
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to inform the discussion and raise the issues to the court.").
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B.

Administrative Motion to Stay Proceedings

Plaintiff's administrative motion to stay proceedings seeks a stay of the instant action
"to stop the clock briefly[] to allow time for [Plaintiff] to secure new counsel, who can
finalize the limited remaining discovery in this matter, and move forward on his behalf."
Dkt. 90. This motion fails for several reasons. First, the motion is an improper
administrative motion because a motion to stay is not a miscellaneous administrative matter
within the meaning of Civil Local Rule 7-11. Second, the motion does not contain a
certification that the parties have complied with the meet and confer requirement in this
Court's Standing Orders. Standing Orders ¶ 5. As discussed above, compliance with this
requirement is essential to the parties' representation that there is a dispute which requires
the Court's resolution. Third, as discussed below, because Green & Green has failed to
demonstrate that withdrawal as counsel of record for Plaintiff is appropriate, a stay of the
instant action to allow Plaintiff time to secure new counsel is not warranted. Accordingly,
Plaintiff's administrative motion to stay proceedings is DENIED without prejudice.
C.

Ex Parte Application to Withdraw

Green & Green has filed a less than one-page ex parte application seeking to
withdraw as counsel of record for Plaintiff on the ground that "an insurmountable conflict
of interest has been discovered requiring withdrawal." Dkt. 91. Green & Green also seeks
to withdraw on the ground that Plaintiff has breached "client responsibilities." In the
alternative, Green & Green requests an ex parte hearing. Id.
The Court's Civil Local Rules authorize an attorney to withdraw as counsel of record
if: (1) written notice has been given reasonably in advance to the client and all other parties
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in the action; and (2) the attorney obtains leave of Court. Civ. L.R. 11-5(a); see Darby v.
City of Torrance, 810 F.Supp. 275, 276 (C.D. Cal. 1992) (an attorney representing a client
may not withdraw except by leave of court). In addition, the Civil Local Rules provide that
when withdrawal by an attorney from an action is not accompanied by simultaneous
appearance of substitute counsel or agreement of the party to appear pro se, leave to
withdraw may be subject to the condition that papers may continue to be served on counsel
for forwarding purposes, unless and until the client appears by other counsel or pro se. Civ.
L.R. 11-5(b).
In this district, the conduct of counsel, including the withdrawal of counsel, is
governed by the standards of professional conduct required of members of the State Bar of
California. Civ. L.R. 11-4(a)(1); see Nehad v. Mukasey, 535 F.3d 962, 970 (9th Cir. 2008)
(applying California Rules of Professional Conduct to attorney withdrawal). California
Rule of Professional Conduct 3-700(B)-(C) allows withdrawal in certain specified
circumstances, including where the client "renders it unreasonably difficult for [counsel] to
carry out the employment effectively." However, before counsel can withdraw, counsel
must comply with California Rule of Professional Conduct 3-700(A)(2), which provides
that counsel shall not withdraw from employment until they have taken reasonable steps to
avoid reasonably foreseeable prejudice to the rights of the client, including giving due
notice to the client, allowing time for employment of other counsel, complying with rule 3700(D) (regarding papers), and complying with applicable laws and rules. See El Hage v.
U.S. Sec. Assocs., Inc., 2007 WL 4328809, at *1 (N.D. Cal. 2007). The decision to permit
counsel to withdraw is within the sound discretion of the trial court. See United States v.
Carter, 560 F.3d 1107, 1113 (9th Cir. 2009).
Green & Green's application to withdraw as counsel of record for Plaintiff is both
procedurally and substantively deficient. The application is procedurally deficient because
Green & Green has failed to demonstrate that an ex parte application to withdraw as
counsel of record is authorized under the Civil Local Rules. "[A] party may file an ex parte
motion . . . only if a statute, Federal Rule, local rule or Standing Order authorizes the filing
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of an ex parte motion in the circumstances and the party has complied with the applicable
provisions allowing the party to approach the Court on an ex parte basis. The motion must
include a citation to the statute, rule or order which permits the use of an ex parte motion to
obtain the relief sought." Civ. L.R. 7-10. Green & Green offers no authority to support its
attempt to withdraw by filing an ex parte application.

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Green & Green's application is substantively deficient because it does not comply
with Civil Local Rule 11-5 or the California Rules of Professional Conduct. In its
application, Green & Green asserts that the firm has not advised Plaintiff in writing of its
intent to withdraw as counsel of record because they cannot locate him. Green & Green,
however, has failed to explain the actions it has taken, if any, prior to filing the instant
motion to locate Plaintiff and/or to notify him of the firm's intent to withdraw. As such,
Green & Green has not taken reasonable steps to avoid reasonably foreseeable prejudice to
the rights of Plaintiff, including giving him due notice of the firm's intent to withdraw and
allowing time for employment of other counsel. Nor has Green & Green articulated with
sufficient specificity its reasons for seeking to withdraw as counsel of record for Plaintiff or
cited authority justifying withdrawal. Instead, Green & Green simply states, without
citation to authority or elaboration, that "[a]n insurmountable conflict of interest has been
discovered requiring withdrawal." Although not requested in the body of the application,
the caption indicates that Green & Green also seeks to withdraw on the ground that Plaintiff
has breached "client responsibilities." Absent a stipulation or specific explanation of the
"insurmountable conflict" and the "client responsibilities" that Plaintiff has breached, it is
impossible for the Court to determine whether withdrawal is appropriate. Accordingly,
Green & Green's motion to withdraw as counsel of record for Plaintif is DENIED without
prejudice. Green & Green's alternative request for an ex parte hearing is DENIED.
II.

CONCLUSION
For the reasons stated above, IT IS HEREBY ORDERED THAT:
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Plaintiff's administrative motion for a continuance is DENIED without

prejudice to filing of a motion that complies with the Civil Local Rules and this Court's
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Standing Orders.
2.

Plaintiff's administrative motion to stay proceedings is DENIED without

prejudice to the filing of a motion that complies with the Civil Local Rules and this Court's
Standing Orders.
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Green & Green's motion to withdraw as counsel of record for Plaintiff is

DENIED without prejudice to the filing of a motion that complies with the Civil Local
Rules and the California Rules of Professional Conduct.
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The parties are advised that prior to the filing of any future motion, they shall

meet and confer in person or by telephone as required by this Court's Standing Orders. All
future motions shall include a certification that the parties have complied with the meet and
confer requirement. The Court cautions the parties that the Court may strike any motion
papers that do not comply with this rule.

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5.

This Order terminates Docket 81, 90, and 91.

IT IS SO ORDERED.
Dated: 12/3/12

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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