Robert Heath v. Google Inc.

Filing 343

*REDACTED* ORDER GRANTING 316 , 328 MOTIONS TO WITHDRAW AS COUNSEL OF RECORD FOR CERTAIN OPT-IN PLAINTIFFS. Signed by Judge Beth Labson Freeman on 9/5/2018. (blflc2S, COURT STAFF) (Filed on 9/5/2018)

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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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ROBERT HEATH, ET AL.,
Plaintiffs,

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v.

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GOOGLE LLC,
Defendant.

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United States District Court
Northern District of California

Case No. 15-cv-01824-BLF
ORDER GRANTING MOTIONS TO
WITHDRAW AS COUNSEL OF
RECORD FOR CERTAIN OPT-IN
PLAINTIFFS
[Re: ECF 316, 328]

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Before the Court are Plaintiffs’ counsels’ (“Movants”) motions to withdraw as counsel of

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record for eight Opt-In Plaintiffs1 (“the Non-Responsive Plaintiffs”) who have failed to respond to

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written discovery as ordered by the Court and to counsel’s communications for over five months.

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See ECF 316 (“6P Mot.”); ECF 328 (“2P Mot.”). The Non-Responsive Plaintiffs did not file an

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opposition. For the reasons that follow, the Court GRANTS Movants’ motions to withdraw as

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counsel, pending their service of the concurrently issued Order to Dismiss the Non-Responsive

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Plaintiffs on those Plaintiffs.

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I.

BACKGROUND
After the Court conditionally certified a class of individuals in this case, two-hundred and

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seventy-two individuals opted in to the collective action lawsuit as party plaintiffs, including the

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eight Non-Responsive Plaintiffs. In July 2017, Plaintiff Cheryl Fillekes and the Opt-In Plaintiffs

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and Defendant Google LLC (“Google”) disputed the content and scope of written discovery in this

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action. On July 27, 2017, Magistrate Judge Howard R. Lloyd settled the dispute by ordering 75

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randomly selected Opt-In Plaintiffs to respond to eight requests for production and four

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The non-responsive Opt-In Plaintiffs are
and

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interrogatories and ordering Google to select 35 Opt-In Plaintiffs to depose. See ECF 185. Six

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Non-Responsive Plaintiffs were served via counsel with these requests on September 7, 2017. See

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6P Mot. at 2–3. The two other Non-Responsive Plaintiffs were served via counsel on March 2,

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2018. See 2P Mot. at 3. Each of the Non-Responsive Plaintiffs failed to respond. See 6P Mot. at

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3; 2P Mot. at 3.
On July 31, 2018, Google moved this Court to issue an order to show cause why the Non-

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Responsive Plaintiffs should not be dismissed. See ECF 314. Plaintiffs opposed. See ECF 320.

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On August 6, 2018, this Court granted Google’s administrative motion and issued an order to

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show cause to the Non-Responsive Plaintiffs, requiring a response by August 31, 2018 and
warning that failure to respond would cause dismissal of the Non-Responsive Plaintiffs. See ECF

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United States District Court
Northern District of California

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323, 324. The Non-Responsive Plaintiffs did not respond by the deadline. In an Order filed

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concurrently with the present Order, this Court dismissed the Non-Responsive Plaintiffs from the

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action without prejudice. See ECF 342.
On August 1, 2018, Plaintiffs’ counsel moved to withdraw as attorneys of record for six of

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the Non-Responsive Plaintiffs, indicating counsel had been unable to reach the six Non-

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Responsive Plaintiffs and had thus notified the six on January 25, 2018 that they would be moving

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to withdraw as counsel. See 6P Mot. at 3. On August 8, 2018, Plaintiffs’ counsel moved to

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withdraw as attorneys of record for the other two Non-Responsive Plaintiffs, having provided

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them notice on July 25, 2018. See 2P Mot. at 3. Again, the Non-Responsive Plaintiffs failed to

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respond. See 6P Mot. at 3; 2P Mot. at 3.

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II.

DISCUSSION
Pursuant to Civ. L.R. 11-5(a), “counsel may not withdraw from an action until relieved by

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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. See also DeLeon v. Wells Fargo Bank, N.A., No. 10-

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CV-01390-LHK, 2010 WL 3565188, at *1 (N.D. Cal. Sept. 13, 2010). The decision to permit

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counsel to withdraw is within the discretion of the trial court. See United States v. Carter, 560

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F.3d 1107, 1113 (9th Cir. 2009). When addressing a motion to withdraw, the court must consider

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factors such as the reason counsel seeks to withdraw, the possible prejudice caused to the litigants,
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and the extent to which withdrawal may delay resolution of the case. Robinson v. Delgado, No.

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CV 02–1538, 2010 WL 3259384, at *2 (N.D.Cal.2010).

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The Court finds that Movants have provided sufficient reasons to justify their withdrawal

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as counsel for the Non-Responsive Plaintiffs. All eight Non-Responsive Plaintiffs have failed to

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comply with orders of this Courts, and as a result have been dismissed from this action without

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prejudice. See Order to Show Cause, ECF 324; Order Dismissing Non-Responsive Plaintiffs, ECF

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342. Likewise, six of the Non-Responsive Plaintiffs have failed to respond to counsels’

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communications for ten months, and two of them have failed to respond for five months. See 6P

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Mot. at 4; 6P Grunert Decl. ¶ 2, 4, ECF 316-1; 2P Mot. at 5; 2P Mot. Grunert Decl. ¶ 2, 4.
Moreover, Movants provided almost eight months’ notice to six of the Non-Responsive Plaintiffs

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United States District Court
Northern District of California

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and over a month’s notice to the other two, as well as to all of the parties. 6P Grunert Decl. ¶ 5, 6;

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2P Grunert Decl. ¶ 5, 6. The Non-Responsive Plaintiffs cannot seriously claim prejudice from

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withdrawal, as they are no longer in the case, and even if they show good cause and re-enter the

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case, they can proceed pro se or retain additional counsel. Finally, Movants’ withdrawal as

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counsel in this case will not cause any delay in the adjudication of this action.

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The Court therefore GRANTS Movants’ motions to withdraw as counsel, pending

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Movants’ service of this Court’s concurrent Order Dismissing the Non-Responsive Plaintiffs on

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the Non-Responsive Plaintiffs. Once Movants have filed the necessary certificate of service of

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that Order, they will cease to be Non-Responsive Plaintiffs’ counsel of record.

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IT IS SO ORDERED.

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Dated: September 5, 2018
______________________________________
BETH LABSON FREEMAN
United States District Judge

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