Moralez v. Circle A Foodmart and Gas et al

Filing 63

ORDER by Judge Kandis A. Westmore granting Michael Welch's 54 Motion to Withdraw as Attorney. Pursuant to Civil L.R. 11-5(b), counsel shall continue to receive notices via ECF and shall forward all documents unto his former clients until a substitution of counsel is filed. (kawlc1, COURT STAFF) (Filed on 11/16/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FRANCISCA MORALEZ,
Plaintiff,

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United States District Court
Northern District of California

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v.

Case No. 4:15-cv-02759-KAW
ORDER GRANTING MOTION TO
WITHDRAW AS COUNSEL
Re: Dkt. No. 54

CIRCLE A FOODMART AND GAS, et al.,
Defendants.

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Presently, Defendants Circle A Foodmart and Gas and Gurnath Singh are represented by

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attorney Michael D. Welch. On July 31, 2017, counsel moved to withdraw. (Mot., Dkt. No. 54.)

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Counsel states that, for the past year, Defendants have failed to communicate with counsel despite

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numerous attempts to contact them via telephone, email, and visits. (Decl. of Michael D. Welch,

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“Welch Decl.,” Dkt. No. 54-1 at 5 ¶ 3.) Counsel served copies of the motion on Defendants via

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U.S. Mail. (Certificate of Service, Dkt. No. 61.) Defendants did not file an opposition to the

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motion to withdraw.

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The Court held a hearing on the motion November 16, 2017. Attorney Michael D. Welch
appeared at the hearing. Defendants did not appear.
Under Civil Local Rule 11-5(a), “[c]ounsel may not withdraw from an action until relieved

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

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other parties who have appeared in the case.” The local rules further provide that if the client does

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not consent to the withdrawal and no substitution of counsel is filed, the motion to withdraw shall

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be granted on the condition that all papers from the court and from the opposing party shall

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continue to be served on that party’s current counsel for forwarding purposes until the client

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appears by other counsel or pro se if the client is not a corporate entity. Civil L.R. 11-5(b).

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Withdrawal is governed by the California Rules of Professional Conduct. See Nehad v.

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Mukasey, 535 F.3d 962, 970 (9th Cir. 2008) (applying California Rules of Professional Conduct to

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attorney withdrawal). Under California Rule of Professional Conduct 3-700(C), an attorney may

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request permission to withdraw if the client breaches an agreement or obligation to its counsel as

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to expenses or fees, or if the client engages in “other conduct [that] renders it unreasonably

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difficult for the member to carry out the employment effectively,” such as a client’s failure to

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communicate with his attorney. Cal. Rules of Prof’l Conduct R. 3-700(C)(1)(d).
The Court has discretion regarding whether to grant a motion to withdraw, and an

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attorney’s request to withdraw should be denied “where such withdrawal would work an injustice

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or cause undue delay in the proceeding.” Gong v. City of Alameda, No. C 03-05495 TEH, 2008

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WL 160964, at *1 (N.D. Cal. Jan. 8, 2008) (no prejudice or undue delay to client where counsel

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United States District Court
Northern District of California

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provided sufficient notice of its intent to withdraw and where no trial date had yet been set in the

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case). Here, the Court finds that good cause exists to grant the motion to withdraw. Counsel has

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attested that Defendants have failed to communicate with him despite counsel’s efforts to reach

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them using various forms of communication, and despite having reached a tentative settlement

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over one year ago. (Welch Decl. ¶¶ 3-4.) This is a valid ground for withdrawal. Furthermore,

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although Defendants have been served with counsel’s motion to withdraw, they did not object to

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the motion nor did they appear at the hearing to contest the motion to withdrawal. Lastly, there is

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no showing that withdrawal would work an injustice or cause undue delay, as Defendants’ actions

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are the reason why the case has not been resolved.

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Accordingly, counsel’s motion to withdraw is granted, and attorney Michael D. Welch is

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relieved as counsel of record. Since Defendants have not consented to the withdrawal and no

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substitution of counsel has been filed, all papers from the court and from other parties shall

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continue to be served on defense counsel for forwarding purposes until a substitution of counsel is

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filed. See Civil L.R. 11-5(b).

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IT IS SO ORDERED.

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Dated: November 16, 2017
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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