De La Garza et al v. The Mexican American Community Services Agency

Filing 30

ORDER by Magistrate Judge Howard R. Lloyd conditionally granting 27 Motion to Withdraw as Attorney. Motion to withdraw granted on condition that papers may continue to be served on attorney John Marshall Collins for forwarding purposes, unless an d until defendant appears by other counsel. Current final pretrial conference and trial dates vacated. Status conference set for 6/5/2012, 1:30 PM to discuss new dates for final pretrial conference and trial.(hrllc2, COURT STAFF) (Filed on 4/30/2012)

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*E-FILED: April 30, 2012*

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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For the Northern District of California

United States District Court

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No. C10-05516 HRL

MARIA ELENA DE LA GARZA; ENRIQUE
ARREOLA; and JOSE VASQUEZ,

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ORDER CONDITIONALLY GRANTING
DEFENSE COUNSEL’S MOTION TO
WITHDRAW

Plaintiffs,
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v.
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THE MEXICAN AMERICAN COMMUNITY
SERVICES AGENCY, a California corporation,

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[Docket No. 27]

Defendant.
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Plaintiffs sue The Mexican American Community Services Agency (MACSA) for its

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alleged failure to make certain contributions to employee benefit plans. After all parties

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consented to the undersigned’s jurisdiction for all purposes, including trial, see 28 U.S.C. §

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636(c); Fed. R. Civ. P. 73, the court issued a scheduling order, culminating in a two-day bench

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trial set to begin on May 14, 2012. The trial subsequently was re-set by the court to May 16-17,

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2012.

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MACSA’s attorney, John Marshall Collins, now moves for permission to withdraw as

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counsel of record. Plaintiffs advise that they are agreeable to Collins’ withdrawal only if the

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currently scheduled trial dates remain on calendar. Otherwise, plaintiffs oppose Collins’ motion

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on the grounds that his withdrawal will lead to prejudicial delay. The record presented indicates

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that MACSA was served with notice of Collins’ motion. The court deems the matter

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appropriate for determination without oral argument. CIV. L.R. 7-1(b). Having considered the

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moving and responding papers, the motion to withdraw is granted, subject to the condition that

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papers may continue to be served on Collins for forwarding purposes, unless and until

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defendant appears by other counsel.

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“Counsel may not withdraw from an action until relieved by order of Court after written

appeared in the case.” CIV. L.R. 11-5(a). “In the Northern District of California, the conduct of

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counsel is governed by the standards of professional conduct required of members of the State

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Bar of California, including the Rules of Professional Conduct of the State Bar of California.”

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Hill Design Group v. Wang, No. C04-521 JF (RS), 2006 WL 3591206 at *4 (N.D. Cal., Dec.

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For the Northern District of California

notice has been given reasonably in advance to the client and to all other parties who have

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United States District Court

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11, 2006) (citing Elan Transdermal Limited v. Cygnus Therapeutic Systems, 809 F. Supp. 1383,

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1387 (N.D. Cal.1992)). Those standards provide that an attorney may seek permission to

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withdraw if, among other things, the client breaches an agreement or obligation to the attorney

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with respect to payment of expenses or fees, or if the client’s conduct renders it unreasonably

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difficult for the attorney to represent the client effectively. Id. (citing Cal. Rules of Professional

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Conduct Rule 3-700(C)(1)(d), (f)).

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According to the moving papers, MACSA is a non-profit corporation that has fallen on

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hard times. Defendant reportedly has been unable to pay Collins’ legal fees for the better part

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of the past year. (Collins Decl., ¶ 5). Asserting that the parties came very close to settlement,

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Collins says that he nevertheless remained in the case through discovery and mediation in the

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hope that MACSA’s financial situation would improve, the matter would settle, or “simply out

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of a feeling for public service.” (Id. ¶ 6). However, Collins says that as a sole practitioner, he

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can no longer afford to proceed with this litigation without payment. (Id. ¶ 8).

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Having come this close to the scheduled trial, plaintiffs understandably want their day in

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court. Nevertheless, under the circumstances presented and having weighed competing

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legitimate interests and possible prejudice, the court concludes that the motion to withdraw

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should be granted, subject to the condition that papers may continue to be served on Collins for

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forwarding purposes, unless and until defendant appears by other counsel. CIV. L.R. 11-5(b).
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Additionally, the currently scheduled final pretrial conference and trial dates are vacated. The

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parties shall appear for a status conference on June 5, 2012, 1:30 p.m. to discuss new dates for

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a final pretrial conference and trial.

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In the interim, MACSA is advised that it may not appear pro se or through its

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corporate officers, but must retain new counsel forthwith to represent it in this lawsuit.

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See CIV. L.R. 3-9(b) (“A corporation, unincorporated association, partnership or other such

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entity may appear only through a member of the bar of this Court”); see also Rowland v.

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California Men’s Colony, 506 U.S. 194, 201-02 (1993) (“It has been the law for the better part

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of two centuries . . . that a corporation may appear in the federal courts only through licensed
counsel”) and In Re Highley, 459 F.2d 554, 555 (9th Cir. 1972) (“A corporation can appear in a

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For the Northern District of California

United States District Court

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court proceeding only through an attorney at law”). MACSA is further advised that it retains

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all of the obligations of a litigant, and its failure to appoint an attorney may lead to an

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order striking its pleadings or entry of its default.1

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Collins shall promptly serve a copy of this order on MACSA and file a proof of service
with the court.

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SO ORDERED.
Dated: April 30, 2012

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HOWARD R. LLOYD
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UNITED STATES MAGISTRATE JUDGE

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Collins avers that he has so advised MACSA. (Collins Decl. ¶ 9).
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5:10-cv-05516-HRL Notice has been electronically mailed to:

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John A. McBride

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John Marshall Collins

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Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

[e-mail], [e-mail]
[e-mail], [e-mail]

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For the Northern District of California

United States District Court

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