Eslick v. Intuitive Surgical, Inc.

Filing 32

Order by Judge Lucy H. Koh Denying 29 Motion to Withdraw as Counsel Without Prejudice.(lhklc1, COURT STAFF) (Filed on 4/9/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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ANGELIA BRYANT ESLICK,
Plaintiff,

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v.

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INTUITIVE SURGICAL, INC.,

Case No. 18-CV-02200-LHK
ORDER DENYING MOTION TO
WITHDRAW AS COUNSEL WITHOUT
PREJUDICE
Re: Dkt. No. 29

Defendant.

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On March 25, 2019, counsel for Plaintiff, Ronnie G. Penton and Nancy Hersh1

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(collectively “Movers”) filed a motion to withdraw as counsel for Plaintiff. ECF No. 29 (Mot.).
Pursuant to Civil Local Rule 11-5(b), counsel may not withdraw from an action until

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relieved by order of the Court. Civil Local Rule 11-5(b); see also Jariwala v. Napolitano,

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2011WL 703730, at *1 (N.D. Cal. Feb. 21, 2011) (“An attorney may not withdraw as counsel

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except by leave of court.”). The decision to permit counsel to withdraw is within the sound

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discretion of the Court. United States v. Carter, 560 F.3d 1107, 1113 (9th Cir. 2009). When

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Francois M. Blaudeau, Evan Taylor Rosemore, and Leah F. Walsh also move to withdraw as
counsel for Plaintiff; however, Blaudeau, Rosemore, and Walsh have not made an appearance in
the instant Plaintiff’s case and are not on the docket.
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Case No. 18-CV-02200-LHK
ORDER DENYING MOTION TO WITHDRAW AS COUNSEL WITHOUT PREJUDICE

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addressing a motion to withdraw, “the consent of the client is not dispositive.” Robinson v.

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Delgado, 2010 WL 3259384, at *2 (N.D. Cal. Aug. 18, 2010); DeLeon v. Wells Fargo Bank, N.A.,

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2010 WL 3565188, at *1 (N.D. Cal. Sept. 13, 2010). Rather, the court must consider factors such

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as the reason counsel seeks to withdraw, the possible prejudice caused to the litigants, and the

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extent to which withdrawal may delay resolution of the case. Id.

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Civil Local Rule 11-4(a)(1) requires attorneys practicing in this district to “comply with

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the standards of professional conduct required of members of the State Bar of California.” Rule 3-

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700 of the Rules of Professional Conduct of the State Bar of California governs an attorney’s

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withdrawal as counsel. Under that rule, before withdrawing for any reason, an attorney must take
“reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including

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United States District Court
Northern District of California

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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), and complying with applicable laws and rules.” Cal. R. Prof. Conduct 3-700(A)(2).

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The Court finds that Movers have not met these standards. First, Movers have not given

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their reason for seeking to withdraw as counsel. Second, the Court finds possible prejudice to the

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Plaintiff. Although Movers notified Plaintiff of their intent to withdraw as her counsel of record,

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and Plaintiff notified Movers of her intent to retain substitute counsel to continue her

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representation, Plaintiff has yet to locate her substitute counsel. Mot. ¶¶ 6–9. The Court questions

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whether Movers have given Plaintiff adequate time for employment of other counsel. The only

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timeline that Movers provide is that on March 5, 2019, Plaintiff advised of her intent to retain

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other counsel; on March 7, 2019, Movers spoke with Plaintiff and confirmed she was seeking

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another attorney; on March 8, 2019, Movers forwarded Plaintiff a copy of her file; on March 13,

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2019, Movers had “another conversation with Plaintiff wherein it was communicated to her that

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she needed to immediately have her new counsel file a substitution into the record due to the

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existence of scheduling orders”; and on March 15, 2019, Movers sent another correspondence to

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Plaintiff reiterating all prior communication with Plaintiff.” Id. ¶ 8. Plaintiff has not yet obtained

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substitute counsel nor has Plaintiff confirmed that she would represent herself as a pro se litigant

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in this action.

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Case No. 18-CV-02200-LHK
ORDER DENYING MOTION TO WITHDRAW AS COUNSEL WITHOUT PREJUDICE

The Court also finds that granting Movers’ motion to withdraw as counsel at this stage

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would pose possible prejudice to Plaintiff and Defendant and may delay resolution of the case.

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Defendant filed a limited opposition to note that it does not oppose the Movers’ motion, “provided

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that it does not delay the current case schedule.” ECF No. 31 (“Opp’n”). Defendant reiterates that

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“[f]act discovery closes on May 3, 2019, and [Defendant] very much wants to abide by this

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deadline and to complete all fact discovery by that date.” See id. Movers suggest that any

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prejudice would be alleviated by Movers’ continued representation of Plaintiff in the sole and

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limited capacity of forwarding all filed documentation to Plaintiff, until another attorney can enroll

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on Plaintiff’s behalf. See Mot. ¶ 9. The Court finds that this does not cure the possible prejudice to

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Plaintiff and Defendant or alleviate any burdens on the case schedule, particularly the May 3, 2019

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United States District Court
Northern District of California

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fact discovery deadline. The Court is concerned that granting Movers’ motion to withdrawal as

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counsel, without substitute counsel available or without notice from the Plaintiff that she would

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like to continue pro se, will cause unnecessary delays in the case.

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Thus, the Court DENIES Movers’ motion to withdraw as counsel without prejudice.

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Plaintiff shall obtain new counsel and move to substitute, or file a notice that she would like to

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continue pro se, within 21 days. At that time, Movers may renew their motion to withdraw as

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counsel. The case schedule, including the May 3, 2019 close of fact discovery, remains as set.

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IT IS SO ORDERED.

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Dated: April 9, 2019
______________________________________
LUCY H. KOH
United States District Judge

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Case No. 18-CV-02200-LHK
ORDER DENYING MOTION TO WITHDRAW AS COUNSEL WITHOUT PREJUDICE