Reynolds v. McLaren Group, LLC et al

Filing 21

ORDER Granting 17 Attorney's Motion to Withdraw as Counsel for Plaintiff. Attorney David Neal Barry terminated. Signed by Judge Thomas J. Whelan on 9/24/2024. (exs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 23-cv-01928-W-MMP

SEAN REYNOLDS,
Plaintiff,

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v.

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MCLAREN GROUP, LLC; MCLAREN
AUTOMOTIVE, INC.; and DOES 1
through 20, inclusive.

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ORDER GRANTING ATTORNEY’S
MOTION TO WITHDRAW AS
COUNSEL FOR PLAINTIFF
[DOC. 17]

Defendants.

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Pending before the Court is David N. Barry’s (“Attorney”) motion to withdraw as

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attorney of record for plaintiff Sean Reynolds (“Plaintiff”). ([Doc. 17], “Motion to

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Withdraw”.) The Court decides the matter on the papers submitted and without oral

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argument. See CivLR 7.1(d)(1). For the reasons set forth below, the Court GRANTS

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the Motion to Withdraw.

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On September 13, 2023, Attorney field this lawsuit on behalf of Plaintiff in San

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Diego County Superior Court. ([Doc. 1-2], “Complaint”.) The Complaint asserted seven

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causes of action relating to Plaintiff’s purchase of an allegedly defective McLaren

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vehicle. (Id.) On October 9, 2023, Plaintiff dismissed defendant McLaren Group, LLC

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with prejudice, apparently after realizing it is a real estate business operated by an
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individual named Kelly McLaren, who has no relation to McLaren vehicles. ([Doc. 1], at

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¶ 14 “Notice of Removal”.)

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Remaining defendant McLaren Automotive, Inc. (“Defendant”) then removed the

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case to federal court on October 20, 2023. (Id.) Thereinafter, the Court denied Plaintiff’s

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motion to remand and granted in part Defendant’s motion to dismiss. (See [Doc. 13],

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“Motion to Dismiss”.) Shortly thereafter, Attorney attempted to withdraw as the attorney

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of record for Plaintiff [Doc. 14] but this initial request was stricken by the Court because

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it, among other things, did not appear that Attorney had served the document on his

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client. (See [Doc. 15].) Now, Attorney again attempts to withdraw as attorney of record

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for Plaintiff, citing a “breakdown of the attorney-client relationship.” ([Doc. 17-1], at 3.)

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An attorney may not withdraw as counsel except by leave of court. Darby v. City

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of Torrance, 810 F. Supp. 275, 276 (C.D.Cal.1992); CivLR 83.3(f)(3). “The grant or

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denial of an attorney’s motion to withdraw in a civil case is a matter addressed to the

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discretion of the trial court . . . .” Washington v. Sherwin Real Estate, Inc., 694 F.2d

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1081, 1087 (7th Cir. 1982). Factors considered in evaluating a motion to withdraw are

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“1) the reasons why withdrawal is sought; 2) the prejudice withdrawal may cause to other

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litigants; 3) the harm withdrawal might cause to the administration of justice; and 4) the

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degree to which withdrawal will delay the resolution of the case.” CE Resource, Inc. v.

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Magellan Group, LLC, 2009 WL 3367489, at *2 (E.D. Cal. 2009) (citing Canandaigua

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Wine Co., Inc. v. Moldauer, 2009 WL 89141, at *1 (E.D. Cal. 2009)).

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Withdrawal of counsel is governed by the standards of professional conduct

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required of members of the State Bar of California. See Nehad v. Mukasey, 535 F.3d

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962, 970 (9th Cir. 2008) (applying California Rules of Professional Conduct to attorney

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withdrawal). Under Rule 1.16(d), an attorney “shall not terminate the representation until

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the lawyer has taken reasonable steps to avoid reasonably foreseeable prejudice to the

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rights of the client, such as giving the client sufficient notice to permit the client to retain

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other counsel . . . .”1 (punctuation omitted). Furthermore, CivLR 83.3(f)(3) states an

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attorney’s motion to withdraw “must be served” “on the moving attorney’s client” and

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the motion must be accompanied by a “declaration pertaining to such service.”

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Here, Attorney’s Motion to Withdraw is accompanied by a declaration and

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certificate of service representing that the Motion to Withdraw was timely served—by

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both mail and electronic service—on Plaintiff Sean Reynolds and counsel for Defendant.

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([Doc. 17-2], at 3–6.) The time for opposition (September 2, 2024) passed and neither

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Plaintiff Sean Reynolds nor Defendant opposed, thereby conceding that neither party

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believes they would be prejudiced by the withdrawal.

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However, on September 17, 2024—one day after the Motion to Withdraw’s

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hearing date and 15 days after any opposition was due—Plaintiff Sean Reynolds (who is

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an attorney) filed an opposition to the Motion to Withdraw. ([Doc. 20], “Opposition”.)

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Plaintiff’s excuse for his Opposition being late was that he “ha[s] never filed in the

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Southern District despite being admitted in 2007 . . . [and] had to upgrade and link my

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Pacer account which has required dozens of phone calls and emails . . . .” (Id. at ¶ 3.)

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While this may be true and could possibly explain a short delay, it does not explain

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Plaintiff’s Opposition being 15 days late. See CivLR 7.1.e.2 (“[E]ach party opposing a

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motion . . . must file that opposition . . . not later than fourteen (14) calendar days prior to

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the noticed hearing.”). Indeed, Plaintiff had over a month between service of the Motion

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to Withdraw and when his Opposition was due—more than enough time to sort out any

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technical difficulties. Plaintiff is an attorney admitted to practice in this district and is

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expected to follow its deadlines just like any other attorney. As such, the Court declines

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to exercise its discretion to permit Plaintiff’s late-filed Opposition. See FED. R. CIV. P.

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6(b)(1) (emphasis added) (“[T]he court may, for good cause, extend time . . . .”).

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California Rule of Professional Conduct 1.01(h) defines “reasonable” and “reasonably” in this context
to mean “the conduct of a reasonably prudent and competent lawyer.”
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Additionally, the Court would still grant the Motion to Withdraw even if it

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considered Plaintiff’s late-filed Opposition. While Plaintiff is correct that Attorney’s

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assertion of a “breakdown of the attorney-client relationship” is somewhat conclusory,

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Plaintiff’s own Opposition makes up for this by demonstrating just how unsalvageable

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the relationship between Plaintiff and Attorney has become. For example, Plaintiff

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himself characterizes Attorney of making “[K]nowingly false statements. There is no

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breakdown of the relationship. There is no conflict of interest. These claims are vague,

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unsupported by any evidence and a falsehood. It is patent that counsel is attempting to

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abandon me as the client after the case has been essentially gutted, mandating the motion

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be denied.” (Opposition at ¶ 11.) The Court fails to see how there can be “no breakdown

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of the relationship” while Plaintiff is simultaneously accusing his own Attorney of

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making “knowingly false statements.” Indeed, the Court does not see how the attorney-

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client relationship could reasonably continue at this point.

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Furthermore, Plaintiff’s own assertions that he would suffer “severe prejudice if

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current counsel is permitted to be relieved . . . as [Attorney] has taken no reasonable steps

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to avoid prejudice of my rights” is itself entirely conclusory.2 (Opposition at ¶ 12.)

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Plaintiff does not articulate how exactly he would be prejudiced by Attorney’s

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withdrawal nor what “reasonable steps” Attorney should take. To the contrary, the

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Magistrate Judge has postponed the Early Neutral Evaluation until the Court’s ruling on

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the Motion to Withdraw. ([Doc. 19].) The scheduling order has not yet been entered and

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there are no other impending dates in this case. Plaintiff himself is an attorney admitted

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Plaintiff also argues that “I object to the Motion’s request for ‘NO ORAL ARGUMENT PURSUANT
TO RULE 7.1(D)(1).’ . . . I request [oral] argument . . . .” (Opposition at ¶ 4.) Plaintiff is mistaken that
Attorney somehow “request[ed]” “NO ORAL ARGUMENT” in his Motion to Withdraw. Instead,
Attorney was simply following the Court’s Chambers Civil Rules. See Judge Whelan’s Chambers Civil
Rule 3(b) (“The Court generally decides motions based on the papers submitted by the parties. In the
caption of its notice of motion and motion, the moving party shall include the following: NO ORAL
ARGUMENT PURSUANT TO LOCAL RULE. If the Court decides that oral argument will assist it in
deciding a given motion, counsel will be notified telephonically at least three (3) court days before the
scheduled hearing date.”)
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