De La Luz et al v. Pape Material Handling, Inc.

Filing 21

ORDER by Hon. Phyllis J. Hamilton denying 19 Motion to Withdraw as Counsel.(pjhlc2S, COURT STAFF) (Filed on 1/31/2017)

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1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 GUMILDO DE LA LUZ, et al., Case No. 16-cv-05062-PJH Plaintiffs, 6 v. ORDER DENYING MOTION TO WITHDRAW AS COUNSEL 7 8 PAPE MATERIAL HANDLING, INC., Re: Dkt. No. 19 Defendant. 9 10 United States District Court Northern District of California 11 Before the court is plaintiffs’ counsel’s motion to withdraw. Dkt. 19. The court 12 finds that the matter is suitable for decision without oral argument, and therefore 13 VACATES the hearing noticed for February 8, 2017. Having reviewed the papers, the 14 court hereby DENIES the motion to withdraw, without prejudice to refiling. 15 Withdrawal motions are governed by Local Rule 11-5 and the standards of 16 professional conduct required of members of the State Bar of California. Civ. L.R. 11- 17 4(a)(1); Nehad v. Mukasey, 535 F.3d 962, 970 (9th Cir. 2008). California Rule of 18 Professional Conduct 3-700 only allows withdrawal in certain specified circumstances. 19 Rule 3-700 provides that “[i]f permission for termination of employment is required by the 20 rules of a tribunal, a member shall not withdraw from employment in a proceeding before 21 that tribunal without its permission.” Cal. R. Prof’l Conduct R. 3-700(A)(1). Further, “[a] 22 member shall not withdraw from employment until the member has taken reasonable 23 steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving 24 due notice to the client, allowing time for employment of other counsel, complying with 25 rule 3-700(D), and complying with applicable laws and rules.” Cal. R. Prof’l Conduct R. 26 3-700(A)(2). 27 Under these provisions, (1) an attorney representing a client in a case in this court 28 may not withdraw from representation without leave of court, and if no substitute counsel 1 has appeared, the attorney must agree to accept service of papers for forwarding 2 purposes per Civil Local Rule 11-5(b); (2) before withdrawing from representation, the 3 attorney must give notice to the client and give the client time to find other counsel, and 4 must also comply with any other applicable court rules; and (3) cause for withdrawal 5 under California Rule of Professional Conduct 3-700 must be established. See Lotus 6 Mgmt., LLC v. Shulman, No. C 13-3401 PJH, 2013 WL 5734893, at *1–*2 (N.D. Cal. Oct. 7 22, 2013). 8 9 Denial of the instant motion is necessary for several reasons. First, counsel’s motion does not give any reason for the withdrawal. It is therefore impossible for the court to evaluate whether there is cause for withdrawal under the provisions of Rule 3-700. 11 United States District Court Northern District of California 10 Counsel has not even cited to any relevant section of this rule. Second, counsel 12 indicates that they informed plaintiffs of their intent to withdraw on January 24, 2017, less 13 than a week before this motion was filed. Dkt. 19-2 ¶ 2. This is insufficient notice to 14 afford plaintiffs “time for employment of other counsel,” Cal. R. Prof’l Conduct R. 3- 15 700(A)(2), which could be prejudicial in light of the upcoming case management 16 conference set for February 16, 2017. Third, noticing a hearing date one week in 17 advance is insufficient notice to all parties who have appeared, which is required under 18 Civil Local Rule 11-5(a). Fourth, counsel has not explained whether plaintiffs consent to 19 the withdrawal, wish to secure other counsel, or wish to proceed pro se. 20 For the foregoing reasons, the motion to withdraw is DENIED. Any future motion 21 to withdraw shall be noticed in accordance with the 35-day hearing schedule of Civil 22 Local Rule 7-2, to afford a reasonable time for plaintiffs and other parties to respond. 23 24 25 26 IT IS SO ORDERED. Dated: January 31, 2016 __________________________________ PHYLLIS J. HAMILTON United States District Judge 27 28 2

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