Fitness Anywhere LLC v. Woss Enterprises LLC

Filing 291

ORDER GRANTING 274 UNOPPOSED MOTION TO WITHDRAW AS COUNSEL OF RECORD FOR DEFENDANT BY BRUCKER AND KIPPERMAN; VACATING DECEMBER 13, 2018 HEARING. Signed by Judge Beth Labson Freeman on 10/9/2018.(blflc2S, COURT STAFF) (Filed on 10/9/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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FITNESS ANYWHERE LLC,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 14-cv-01725-BLF

v.
WOSS ENTERPRISES LLC,
Defendant.

ORDER GRANTING UNOPPOSED
MOTION TO WITHDRAW AS
COUNSEL OF RECORD FOR
DEFENDANT; VACATING
DECEMBER 13, 2018 HEARING
[Re: ECF 274]

Before the Court is attorneys H. Michael Brucker and Steven M. Kipperman’s
(“Movants”) motion to withdraw as counsel for Defendant Woss Enterprises LLC (“Woss”)
pursuant to Civil Local Rule 11-5. See ECF 274 (“Mot.”). The time to oppose the motion has

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passed, and no party has filed an opposition. The Court finds that the motion is appropriate for
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submission without oral argument. See Civ. L.R. 7-1(b). Accordingly, the hearing set for
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December 13, 2018 is VACATED. For the reasons that follow, the motion is GRANTED.
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The decision to grant or deny an attorney’s motion to withdraw as counsel is committed to

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the sound discretion of the trial court. j2 Glob. Commc'ns, Inc. v. Blue Jay, Inc., No. C 0821
4254PJH, 2009 WL 464768, at *1 (N.D. Cal. Feb. 24, 2009) (citing LaGrand v. Stewart, 133 F.3d
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1253, 1269 (9th Cir.)). In this district, the California Rules of Professional Conduct govern
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withdrawal of counsel. See Nehad v. Mukasey, 535 F.3d 962, 970 (9th Cir. 2008). Moreover,
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under Civil Local Rule 11-5, “[c]ounsel may not withdraw from an action unless relieved by order

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of Court after written notice has been given reasonably in advance to the client and to all other
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parties who have appeared in the case.” Where “withdrawal of an attorney is not accompanied by

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simultaneous appearance of substitute counsel or agreement of the party to appear pro se, leave to
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withdraw may be subject to the condition that papers may continue to be served on counsel for

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forwarding purposes.” Civ. L.R. 11-5(b).

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Woss filed for Chapter 7 bankruptcy on May 18, 2017, placing Woss in the hands of

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Bankruptcy Trustee Sarah Little. See ECF 275 ¶ 2. The Trustee has been nonresponsive to

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Movants since July 2017, and Movants are informed that Woss cannot pay Movants either for

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their past services or for any services moving forward. Id. ¶¶ 3–4. Movants provided Trustee

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notice of this motion on June 27, 2018, and the Trustee failed to oppose the motion. Id. ¶ 6.

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Given the Trustee’s unwillingness to communicate with or pay Movants, the Court finds that

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withdrawal is appropriate.

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United States District Court
Northern District of California

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Counsel shall continue to receive papers for service and shall forward such papers to
Defendant Woss as agreed in the motion.
Defendant Woss is advised that it may not appear in this action or file any papers except
through counsel of record.
Accordingly, H. Michael Brucker and Steven M. Kipperman’s motion to withdraw as
counsel for Defendant is GRANTED.

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IT IS SO ORDERED.

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Dated: October 9, 2018
______________________________________
BETH LABSON FREEMAN
United States District Judge

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