POGA MGMT PTNRS LLC v. Medfiler LLC et al
Filing
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ORDER granting 59 Motion to Withdraw as Attorney. Signed by Judge Laurel Beeler on 10/9/2014. (lblc2, COURT STAFF) (Filed on 10/9/2014)
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UNITED STATES DISTRICT COURT
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Northern District of California
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San Francisco Division
POGA MGT PTNRS LLC,
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For the Northern District of California
UNITED STATES DISTRICT COURT
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No. C 12-06087 SBA (LB)
Plaintiff,
ORDER GRANTING MOTION TO
WITHDRAW
v.
[Re: ECF Nos. 59, 60]
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MEDFILER LLC et al.,
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Defendants.
_____________________________________/
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INTRODUCTION
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Plaintiff is represented by attorney Joseph Wilson, who moved to withdraw on September 12,
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2014, on the ground that there has been a “total breakdown in the attorney-client relationship, such
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that Counsel for Plaintiff is in conflict with Plaintiff, cannot carry out further representation, and
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must mandatorily withdraw.” Motion, ECF No. 59 at 3. Defendants respond that they do not have
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facts to oppose the motion (given that Plaintiff’s counsel did not explain the context for the
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breakdown), but they are concerned that a delay will prejudice the timing of the summary judgment
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motion that they contemplate filing shortly. See Response, ECF No. 61 at 2. The district court
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referred the matter to the undersigned on September 17, 2014. See Order, ECF No. 63. After
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hearings on October 2, 2014, and October 9, 2014, the court grants the motion to withdraw.
STATEMENT
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The court previously granted the matter to shorten time and set the matter for hearing on
C 12-06087 SBA (LB)
ORDER
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Thursday, October 2, 2014. See 9/21/14 Order, ECF No. 66. That order directed counsel and
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plaintiff to appear personally. See id. The order also set forth the legal standard for withdrawal, and
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the court directed Mr. Wilson to serve a copy of the order on his client before the hearing. See id.
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At the hearing on October 2, 2014, counsel appeared, but Plaintiff did not. See Minute Order,
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ECF No. 74. Plaintiff’s counsel represented that he served his client, told him about the time of the
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hearing the night before by email, and received an emailed acknowledgment. He also filed a proof
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of service. See ECF No. 73. Plaintiff’s counsel gave notice under Civil Local Rule 11-5 of his intent
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to withdraw to his client and Defendants’ counsel. See Wilson Decl., ECF No. 59, at 5.
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Based on Plaintiff’s non-appearance, the court reset the matter for hearing on October 9, 2014, at
Francisco, California, 94102. The court ordered counsel and Plaintiff to personally appear at the
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For the Northern District of California
11 a.m. in Courtroom C, 15th Floor, United States District Court, 450 Golden Gate Avenue, San
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UNITED STATES DISTRICT COURT
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hearing, and the court ordered Plaintiff’s counsel to serve Plaintiff with a copy of this order.
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On October 9, 2014, counsel and Mr. Gamboa, the principal of Plaintiff Poga, appeared. The
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undersigned discussed the underlying conflict between Mr. Gamboa and his attorney in a separate
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session outside of the presence of Defendant’s counsel. Mr. Gamboa said that he did not oppose his
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attorney’s motion. The court set a further case management conference for Thursday, October 30,
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2014, to give Mr. Gamboa an opportunity to find substitute counsel and advised him that his
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attorney could file a notice of substitute counsel before that date. The court also advised Mr.
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Gamboa that his limited liability corporation, which is the named Plaintiff, cannot appear in federal
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court except through counsel.
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The parties agreed that the time period for responding to the counterclaims will be extended, and
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the court will address any change in dates at the next case management conference on October 30,
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2014. Because Mr. Gamboa is named as an individual in the counterclaims, the court gave him a
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copy of the court’s handbook for litigants without a lawyer.
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ANAYSIS
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Under Civil Local Rule 11-5(a), “[c]ounsel may not withdraw from an action until relieved by
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order of Court after written notice has been given reasonably in advance to the client and to all other
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parties who have appeared in the case.” The local rules further provide that if the client does not
C 12-06087 SBA (LB)
ORDER
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consent to the withdrawal and no substitution of counsel is filed, the motion to withdraw shall be
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granted on the condition that all papers from the court and from the opposing party shall continue to
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be served on that party’s current counsel for forwarding purposes until the client appears by other
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counsel or pro se if the client is not a corporate defendant. N.D. Cal. Civ. L.R. 11-5(b).
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Withdrawal is governed by the California Rules of Professional Conduct. See Nehad v.
attorney withdrawal); j2 Global Commc’ns, Inc. v. Blue Jay, Inc., No. C 08-4254 PHJ, 2009 WL
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464768, at *1 (N.D. Cal. Feb. 24, 2009) (citation omitted). California Rule of Professional Conduct
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3-700(B) sets forth grounds requiring mandatory withdrawal, including the following: (1) a client’s
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bringing a harassing or malicious lawsuit or (2) the attorney’s continued employment would violate
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California’s ethics rules. Rule 3-700(C) sets forth several grounds under which an attorney may
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For the Northern District of California
Mukasey, 535 F.3d 962, 970 (9th Cir. 2008) (applying California Rules of Professional Conduct to
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UNITED STATES DISTRICT COURT
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request permission to withdraw, including the following: (1) a client (a) insists on presenting a claim
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or defense not warranted under the law or a good-faith extension of it, (b) seeks to pursue an illegal
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course of conduct, (c) insists that the attorney pursue an illegal course of conduct or conduct barred
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by the ethics rules, (d) makes it unreasonably difficult for the attorney to carry out his employment
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effectively, (e) insists (in a matter not pending before a tribunal) that the attorney act contrary to the
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attorney’s judgment or advice, or (f) breaches an agreement or obligation as to fees; (2) the
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attorney’s continued employment is likely to breach the ethics rules; or (3) the attorney believes in
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good faith (in proceeding pending before a tribunal) that the tribunal will find other good cause for
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the withdrawal.
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The decision to grant or deny a motion to withdraw is discretionary with the court, and the court
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can use “its discretion to deny an attorney’s request to withdraw where such withdrawal would work
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an injustice or cause undue delay in the proceeding.” Gong v. City of Alameda, No. C 03-05495
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THE, 2008 WL 160964, at *1 (N.D. Cal. Jan. 8, 2008) (citing Mandel v. Superior Court, 67 Cal.
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App. 3d 1, 4 (1977)) (no prejudice or undue delay to client where counsel provided sufficient notice
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of his intent to withdraw and where no trial date had yet been set in the case).
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The court finds good cause for the withdrawal based on the breakdown of the attorney-client
relationship. Plaintiff’s counsel took reasonable steps to avoid prejudice to his client by giving
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notice of the withdrawal, and Poga was advised that it must retain counsel in order to prosecute this
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action because limited liability companies can appear only through counsel. See Civ. L. R. 3-9(b);
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Hartford Ins. Co., LLC v. NBC General Contr. Corp., No. 09-5363 SBA, 2014 U.S. Dist. LEXIS
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29814 at n.2 (N.D. Cal. Mar. 6, 2014).
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CONCLUSION
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The court grants Plaintiff’s counsel Joseph C. Wilson, V’s motion to withdraw. Because his
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motion to withdraw is not accompanied by a simultaneous appearance of substitute counsel, the
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motion is granted on the condition that all papers continue to be served on Plaintiff’s counsel for
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forwarding purposes until a substitution of counsel is filed. Since corporations may not appear in
substitution of counsel within 21 days, the court will recommend dismissal of the case for failure to
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For the Northern District of California
court except by counsel, Poga has 21 days to appear by substitute counsel. If it has not filed a
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prosecute it. To address the interrelated issue of Mr. Gamboa’s time period for answering the
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counterclaims, where he is named personally, the court sets a further status date for October 30,
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2014 at 11 a.m. in Courtroom C, 15th Floor, United States District Court, 450 Golden Gate Avenue,
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San Francisco, California, 94102. That date also will allow the parties to problem solve any
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scheduling issues. Mr. Wilson must serve a copy of this order on Mr. Gamboa and file proof of
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service. Mr. Gamboa is warned that if he does not retain substitute counsel, he risks dismissal of his
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case for failure to prosecute it, and his failure to appear on October 30, 2014 and respond to the
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counterclaims risks Defendants’ moving for default judgment against him on those claims.
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IT IS SO ORDERED.
Dated: October 9, 2014
_______________________________
LAUREL BEELER
United States Magistrate Judge
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