Gehl et al v. Bloomin' Brands et al

Filing 71

ORDER by Judge Kandis A. Westmore granting 53 Motion to Withdraw as Counsel of Record for Shannon Spalding and for withdrawal of Shannon Spalding and Brittni Zacher as named plaintiffs. (kawlc1, COURT STAFF) (Filed on 11/6/2014)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

HOLLY GEHL, et al.,

Case No. 13-cv-05961-KAW

Plaintiffs,
8
v.
9
10

T-BIRD RESTAURANT GROUP, INC., et
al.,
Defendants.

11

ORDER GRANTING MOTION TO
WITHDRAW AS COUNSEL OF RECORD
FOR PLAINTIFF SHANNON SPALDING
AND FOR WITHDRAWAL OF
SHANNON SPALDING AND BRITTNI
ZACHER AS NAMED PLAINTIFFS

United States District Court
Northern District of California

Dkt. No. 53
12
13

On September 26, 2014, Plaintiffs’ counsel filed a motion for leave to withdraw as counsel

14

of record for Plaintiff Shannon Spalding and to have Plaintiffs Spalding and Brittni Zacher

15

withdrawn as named plaintiffs. (Dkt. No. 53.) As to Plaintiff Spalding, Counsel claims that Ms.

16

Spalding has ceased communicating with counsel and failed to appear at her noticed deposition.

17

(Pls.’ Mot. at 2.) Plaintiffs’ counsel claims that Ms. Zacher has stated that she no longer wishes to

18

participate in the litigation, and her noticed deposition did not go forward. Counsel served copies

19

of the motion on Plaintiffs via email and U.S. Mail. (Dkt. No.54.) Defendants did not file an

20

opposition.

21

On October 15, 2014, the Court issued an order to show cause to Plaintiffs Spalding and

22

Zacher with a response date of October 31, 2014. (OSC, Dkt. No. 59.) Ms. Zacher was ordered to

23

submit a declaration under penalty of perjury confirming that she wanted to be withdrawn as a

24

named plaintiff. On October 29, 2014, Plaintiffs’ counsel filed a declaration with an email

25

attached confirming Ms. Zacher’s wish to no longer serve as a named plaintiff and that she did not

26

have access to a printer to print and sign a declaration. (Decl. of Eric Levinrad, Dkt. No. 68, Ex.

27

1.) Since the email was from Ms. Zacher’s email account, this is sufficient to confirm her wish to

28

withdraw as a named plaintiff. Ms. Zacher may, however, participate as a class member.

1

Ms. Spalding was ordered to show cause on or before October 31, 2014 to explain why the

2

law firm of Wolf, Rifkin, Shapiro, Schulman Rabkin, LLP should not be withdrawn as her counsel

3

in this case, and submit a declaration under penalty of perjury to either (1) confirm that she longer

4

wishes to be a party to this litigation or (2) explain why she did not appear at her deposition

5

despite wishing to remain a named plaintiff. Ms. Spalding was ordered to file her reply with the

6

court by mail. Plaintiffs’ counsel served the order to show cause on Ms. Spalding via email and

7

U.S. Mail. (Dkt. No. 61.) Plaintiff Spalding did not file a response as ordered. Thus, as to Ms.

8

Spalding, this motion may be granted as unopposed.

9
10

United States District Court
Northern District of California

11

On November 6, 2014, the Court held a hearing at which neither Ms. Spalding nor Ms.
Zacher appeared.
Under Civil Local Rule 11-5(a), “[c]ounsel may not withdraw from an action until relieved

12

by order of Court after written notice has been given reasonably in advance to the client and to all

13

other parties who have appeared in the case.”

14

Accordingly, Plaintiffs’ counsel’s motion to withdraw as counsel for Shannon Spalding is

15

GRANTED as unopposed. Additionally, Plaintiffs’ motion for withdrawal of Shannon Spalding

16

and Brittni Zacher as named plaintiffs is also GRANTED. Since Ms. Spalding is no longer a party

17

to this action, any individual claims against Defendant Bloomin’ Brands, or any other remaining

18

defendants, are dismissed without prejudice. This dismissal does not bar Ms. Spalding from

19

participating as a class member.

20

Plaintiffs shall serve a copy of this order on both Shannon Spalding and Brittni Zacher.

21

IT IS SO ORDERED.

22
23
24

Dated: November 6, 2014
______________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

25
26
27
28
2