Das et al v. WMC Mortgage Corp et al

Filing 125

ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL AND EXTENSION OF TIME TO RESPOND TO DEFENDANT'S MOTION TO DISMISS re #112 MOTION to Withdraw as Attorney filed by Madhvamuni K Das, Geetha M Das, #123 MOTION for Extension of Time to File Response/Reply filed by Madhvamuni K Das, Geetha M Das. Signed by Judge Lucy Koh on October 14, 2011. (jflc1, COURT STAFF) (Filed on 10/14/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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MADHVAMUNI K. DAS; GEETHA M. DAS, )
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Plaintiffs,
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v.
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WMC MORTGAGE CORP., et al.,
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Defendants.
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Case No.: C10-00650-LHK
ORDER GRANTING MOTION TO
WITHDRAW AS COUNSEL AND
EXTENSION OF TIME TO RESPOND
TO DEFENDANT’S MOTION TO
DISMISS

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On July 8, 2011, The Chugh Firm, APC (“Chugh”) moved to withdraw as counsel for
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Plaintiffs Madhvamuni K. Das and Geetha M. Das (“Plainitffs”) on the grounds that Plaintiffs
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refuse to engage in discovery and owe nearly $75,000 in legal fees. See ECF No. 112. In light of
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the motion to withdraw, the parties also filed a joint stipulation for extension of time to respond to
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defendant’s motion to dismiss. See ECF No. 123. For the following reasons, the Court GRANTS
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the unopposed motion to withdraw as counsel and the extension of time to respond to defendant’s
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motion to dismiss.
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I. BACKGROUND
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On February 19, 2010, Chugh filed a complaint on behalf of Plaintiffs alleging, among
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other things, violations of the Truth in Lending Act related to the purchase of real property. See
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Case No.: C10-00650-LHK
ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL AND EXTENSION OF TIME TO RESPOND TO
DEFENDANT’S MOTION TO DISMISS

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ECF No. 1 (Complaint). Preliminary disclosures were to be exchanged by March 1, 2011. See

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ECF No. 118 (Case Management Statement). However, as of July 2011, the parties had yet to

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propound any discovery. See id. According to Chugh, Plaintiffs have “refus[ed] to expend time,

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resources and funds on expensive discovery, thus causing the litigation to come to a standstill.”

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ECF No. 112 (Shah Decl.) at 2. In addition, Chugh claims that Plaintiffs have amassed unpaid

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legal fees totaling $72,519.78. Id.

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Chugh served written notice of this motion on Plaintiffs and all other parties on June 15,
2011, more than four months before the hearing date. See ECF No. 112, Ex. A; Ex. B. The same

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United States District Court
For the Northern District of California

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day, Plaintiffs signed a letter consenting to Chugh’s withdrawal. See id, Ex. B. Defendants did not

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oppose the motion.
On October 12, 2011, Chugh and Plaintiffs appeared before the Court for oral argument on

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the motion to withdraw as counsel. Plaintiffs reiterated their consent to Chugh’s withdrawal and

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indicated that they would proceed with the case pro se.

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II. LEGAL STANDARDS
“An attorney may not withdraw as counsel except by leave of court.” Darby v. City of

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Torrance, 810 F. Supp. 275, 276 (C.D. Cal. 1992). Permission to withdraw is discretionary.

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See United States v. Carter, 560 F.3d 1107, 1113 (9th Cir. 2009); Washington v. Sherwin Real

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Estate, Inc., 694 F.2d 1081, 1087 (7th Cir. 1982). In ruling on a motion to withdraw, courts have

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considered: “1) the reasons why withdrawal is sought; 2) the prejudice withdrawal may cause to

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other litigants; 3) the harm withdrawal might cause to the administration of justice; and 4) the

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degree to which withdrawal will delay the resolution of the case.” CE Res., Inc. v. Magellan

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Group, LLC, 2:08-CV-02999MCEKJM, 2009 WL 3367489, *2 (E.D. Cal. Oct. 14, 2009

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In addition, attorneys seeking to withdraw must “comply with the standards of professional

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conduct required of members of the State Bar of California.” Civil Local Rule 11-4(a)(1). Under

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the California Rules of Professional Conduct, withdrawal may be appropriate if the client “renders

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it unreasonably difficult for the member to carry out the employment effectively” or “breaches an

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Case No.: C10-00650-LHK
ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL AND EXTENSION OF TIME TO RESPOND TO
DEFENDANT’S MOTION TO DISMISS

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agreement or obligation to the member as to expenses or fees.” CAL. R. PROF. CONDUCT 3-

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700(C)(1)(d); 3-700(C)(1)(f). Before withdrawing for any reason, an attorney must take

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“reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including

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giving due notice to the client, allowing time for employment of other counsel, complying with

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rule 3-700(D), 1 and complying with applicable laws and rules.” CAL. R. PROF. CONDUCT 3-

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700(A)(2). The Civil Local Rules also require an attorney to provide written notice of her intent to

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withdraw “reasonably in advance to the client and all other parties who have appeared in the case.”

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Civil Local Rule 11-5(a).

United States District Court
For the Northern District of California

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Where withdrawal by an attorney is not accompanied by simultaneous appearance of

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substitute counsel or agreement of the party to appear pro se, leave to withdraw may be subject to

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the condition that papers continue to be served on counsel for forwarding purposes until the client

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appears by other counsel or pro se. Civil Local Rule 11-5(b).

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III. DISCUSSION

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Chugh argues that continuing to pursue this matter on behalf of Plaintiffs would be

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“unreasonably difficult” because of Plaintiffs’ refusal to engage in discovery. Shah Decl. at 2. The

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Court agrees that where discovery is necessary to the effective prosecution of a claim, the client’s

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reluctance to participate may create “irreconcilable differences of opinion … as to the best

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litigation strategy,” justifying withdrawal. Moss Landing Commercial Park LLC v. Kaiser

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Aluminum Corp., C-07-06072 RMW, 2009 WL 764873 (N.D. Cal. Mar. 19, 2009). Similarly,

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Plaintiffs’ failure to pay legal fees is grounds for granting a motion to withdraw. See id; U.A.

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Local 342 Joint Labor-Mgmt. Comm. v. S. City Refrigeration, Inc., C-09-3219 JCS, 2010 WL

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Rule 3-700(D) provides: “A member whose employment has terminated shall: (1) Subject
to any protective order or non-disclosure agreement, promptly release to the client, at the request of
the client, all the client papers and property. ‘Client papers and property’ includes correspondence,
pleadings, deposition transcripts, exhibits, physical evidence, expert's reports, and other items
reasonably necessary to the client’s representation, whether the client has paid for them or not; and
(2) Promptly refund any part of a fee paid in advance that has not been earned. This provision is
not applicable to a true retainer fee which is paid solely for the purpose of ensuring the availability
of the member for the matter.”
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Case No.: C10-00650-LHK
ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL AND EXTENSION OF TIME TO RESPOND TO
DEFENDANT’S MOTION TO DISMISS

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1293522 (N.D. Cal. Mar. 31, 2010) (motion to withdraw granted on the basis that client failed to

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pay fees, cooperate or communicate effectively with counsel); CAL. R. PROF. CONDUCT 3-

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700(C)(1)(f).

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Furthermore, withdrawal here will not unduly prejudice the other litigants. Chugh has
complied with the notice obligations of Civil Local Rule 11-5(a), and all Defendants have been

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aware of counsel’s intent to withdraw for nearly four months. In fact, the joint stipulation for

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extension of time indicates that Defendants wish to “permit a final resolution of the…motion to

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withdraw…and to allow Plaintiffs sufficient time to respond to the Motion to Dismiss.” ECF No.

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United States District Court
For the Northern District of California

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123 at 2. Finally, Plaintiffs consented to Chugh’s withdrawal both in writing and before the Court,

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and have elected to proceed pro se.

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IV. CONCLUSION
For the foregoing reasons, Chugh’s unopposed motion to withdraw as counsel for Plaintiffs

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is GRANTED. In addition, the Court GRANTS the extension of time to respond to defendant’s

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motion to dismiss. Plaintiffs must file their response by October 21, 2011. Defendants must file

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their reply by October 28, 2011. However, the Court cautions that in order to avoid undue delay in

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the resolution of this case, it will not postpone the November 17, 2011 hearing date. If Plaintiffs

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fail to respond to the motion to dismiss, the Court will issue an order to show cause as to why this

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case should not be dismissed for failure to prosecute.

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IT IS SO ORDERED.

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Dated: October 14, 2011

_____________________________
LUCY H. KOH
United States District Judge

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Case No.: C10-00650-LHK
ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL AND EXTENSION OF TIME TO RESPOND TO
DEFENDANT’S MOTION TO DISMISS