Johnson v. Montello et al

Filing 21

ORDER DENYING 20 STIPULATION FOR THE WITHDRAWAL OF COUNSEL WITHOUT PREJUDICE; DENYING 20 MOTION TO CONTINUE SITE SURVEY WITHOUT PREJUDICE. Signed by Judge Edward J. Davila on 1/12/2018. (ejdlc2S, COURT STAFF) (Filed on 1/12/2018)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 SCOTT JOHNSON, Case No. 5:17-cv-06367-EJD Plaintiff, 9 v. 10 11 JOHN MONTELLO, et al., United States District Court Northern District of California Defendants. ORDER DENYING STIPULATION FOR THE WITHDRAWAL OF COUNSEL WITHOUT PREJUDICE; DENYING MOTION TO CONTINUE SITE SURVEY WITHOUT PREJUDICE Re: Dkt. No. 20 12 13 Defendants John Montello and Michelle Joanne Montello (“Montello Defendants”) and 14 15 their attorney Catherine M. Corfee (“Counsel”), have filed a stipulation and administrative motion 16 seeking: (1) permission for Counsel to withdraw as counsel of record; and (2) an extension of “30- 17 40 days” to complete the joint site survey required under General Order 56, which is currently set 18 for February 14, 2018. Dkt. No. 20 (“Mot.”). For the reasons discussed below, both requests are 19 DENIED WITHOUT PREJUDICE. 20 I. MOTION TO WITHDRAW 21 Under Civil Local Rule 11-5, “[c]ounsel may not withdraw from an action unless relieved 22 by order of Court after written notice has been given reasonably in advance to the client and to all 23 other parties who have appeared in the case.” Where “withdrawal of an attorney is not 24 accompanied by simultaneous appearance of substitute counsel or agreement of the party to appear 25 pro se, leave to withdraw may be subject to the condition that papers may continue to be served on 26 counsel for forwarding purposes.” Civ. L.R. 11-5(b). 27 28 Case No.: 5:17-cv-06367-EJD ORDER DENYING STIPULATION FOR THE WITHDRAWAL OF COUNSEL WITHOUT PREJUDICE; DENYING MOTION TO CONTINUE SITE SURVEY WITHOUT PREJUDICE 1 The Court notes at the outset that the posture of this request is unusual. An attorney must 1 2 move for permission from the Court to withdraw; withdrawal cannot be effected by stipulation. 3 Civ. L.R. 11-5(a). In addition, although Counsel’s submission indicates that the Montello 4 Defendants and Counsel “agree for the withdrawal of [Counsel],” Declaration of Catherine M. 5 Corfee, Dkt. No. 20, at ¶ 2, there is no indication that “written notice [was] given reasonably in 6 advance to the client and to all other parties who have appeared in this case,” as required under the 7 local rules. 8 Moreover, even setting compliance with the local rules aside, the Court cannot grant 9 Counsel’s request as written. The Montello Defendants have been sued “individually and in [their] representative capacity as trustee[s].” While individuals are free to represent themselves in 11 United States District Court Northern District of California 10 their personal capacities, trustees acting in representative capacities cannot. United States v. Mraz, 12 274 F.Supp.2d 750, 755 (D. Md. 2003) (“A trustee appearing in a solely representative capacity . . 13 . requires a lawyer in federal court.”) (internal citation and quotation marks omitted); Rowland v. 14 Cal. Men’s Colony, 506 U.S. 194, 202, 113 S. Ct. 716, 121 L. Ed. 2d 656 (1993) (“[S]ave in a few 15 aberrant cases, the lower courts have uniformly held that 28 U.S.C. § 1654, providing that ‘parties 16 may plead and conduct their own cases personally or by counsel,’ does not allow corporations, 17 partnerships, or associations to appear in federal court otherwise than through a licensed 18 attorney.”). Thus, unless and until the Court receives assurance that the Montello Defendants have 19 obtained substitute counsel, the Court cannot permit Counsel to withdraw. Accordingly, Counsel’s request to withdraw is DENIED WITHOUT PREJUDICE. 20 21 Counsel may renew her request to withdraw, but must provide the Court with confirmation that 22 (1) the Montello Defendants have obtained substitute counsel; and (2) written notice has been 23 “reasonably given in advance” to all parties. 24 II. MOTION TO EXTEND THE JOINT SITE SURVEY DEADLINE 25 General Order 56 requires that “[n]o later than 105 days after filing the complaint, the 26 parties and their counsel . . . shall meet in person at the subject premises.” As a court-ordered 27 28 Case No.: 5:17-cv-06367-EJD ORDER DENYING STIPULATION FOR THE WITHDRAWAL OF COUNSEL WITHOUT PREJUDICE; DENYING MOTION TO CONTINUE SITE SURVEY WITHOUT PREJUDICE 2 1 deadline, the time for completing this site survey may be modified only upon a showing of good 2 cause. Fed. R. Civ. P. 16(b)(4). The instant motion does not clearly articulate a reason for 3 modifying the deadline. To the extent that the Montello Defendants or Counsel contemplate that 4 Counsel’s withdrawal provides good cause, this cannot be relied upon until Counsel has actually 5 been granted permission to withdraw. This has not happened. Accordingly, because no good 6 cause has been shown, Defendants’ request to extend the joint site survey deadline is DENIED 7 WITHOUT PREJUDICE. 8 9 10 United States District Court Northern District of California 11 IT IS SO ORDERED. Dated: January 12, 2018 ______________________________________ EDWARD J. DAVILA United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No.: 5:17-cv-06367-EJD ORDER DENYING STIPULATION FOR THE WITHDRAWAL OF COUNSEL WITHOUT PREJUDICE; DENYING MOTION TO CONTINUE SITE SURVEY WITHOUT PREJUDICE 3

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