Local Ad Link, Inc. et al v. Adzzoo, LLC et al

Filing 113

ORDER Granting 110 Motion to Withdraw Attorney Benjamin L Bunker. Plaintiffs must retain counsel and individual plaintiff must either retain counsel or file a notice of appearing pro se within 14 days from the entry of this order. Signed by Magistrate Judge Cam Ferenbach on 4/18/2012. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LOCAL AD LINK, INC, et al,
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Plaintiffs,
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v.
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ADZZOO, LLC, et al.,
Defendants.

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2:09-cv-01564-GMN -VCF
ORDER

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Before the court is plaintiffs’ counsel Benjamin L. Bunker’s Motion To Withdraw As Counsel.
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(#110). Defendants filed a Notice of Non-Opposition. (#112).
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Background
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Plaintiffs filed their complaint in the Eighth Judicial District Court, Clark County, Nevada, on
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July 29, 2009. (#1-2). Plaintiffs were represented by Aaron D. Ford and Jared R. Richards of Snell and
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Wilmer, L.L.P. Id. The action was removed to this court on August 19, 2009. (#1). On March 5,
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2010, plaintiffs’ attorneys at Snell and Wilmer filed a motion to withdraw as counsel, asserting that
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plaintiffs failed to pay the amounts in legal fees due and owing. (#43). The court granted the motion
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to withdraw on March 15, 2010, and ordered plaintiffs to retain new counsel by April 12, 2010. (#46).
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The April 12, 2010, deadline passed, and plaintiffs had not retained new counsel.
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On June 14, 2010, attorney Benjamin L. Bunker filed a notice of appearance on behalf of
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plaintiffs. (#72). On February 23, 2011, Joseph Maridon, Jr. filed a notice of association of counsel
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(#93) for plaintiffs. In July of 2011, plaintiffs’ counsel Mr. Maridon filed a notice of withdraw as
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counsel of record, stating that “all further notices and copies of pleadings, papers and other material
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relevant to this action should be provided to and served upon Benjamin L. Bunker, Esq.” (#100). In
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September of 2011, after the court issued rulings on several motions, the defendants attempted to
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contact plaintiffs’ counsel, Mr Bunker, to discuss settlement negotiations. (#106). Mr. Bunker

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indicated that he no longer represents plaintiffs and that he does not have any information regarding

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plaintiffs’ new counsel. Id. As the docket indicated that plaintiffs’ counsel of record was Mr. Bunker,

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and Mr. Bunker had not filed a motion to withdraw, defendants filed a Motion for Order Directing

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Plaintiffs to Appear Through Counsel on February 22, 2012. (#106). On March 9, 2012, the court

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entered a minute order scheduling a hearing on the defendants’ motion (#106) for March 30, 2012.

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(#107). On March 14, 2012, the court issued a minute order rescheduling the hearing for April 12,

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2012, at 11:00 a.m. (#108).

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During the April 12, 2012, hearing, Mr. Bunker stated that he no longer represents the plaintiffs,

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that he has no contact with them, and that he thought he signed a motion for substitution of counsel.

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Since no such motion was filed, the court issued an order and report and recommendation on April 16,

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2012, stating that if Mr. Bunker “desires to withdraw as counsel, he must file a motion within 10 days

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from the entry of [the] order.” (#111). The court also ordered that Mr. Bunker “must include in his

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motion to withdraw accurate contact information for plaintiffs Robert McNulty, Local Ad Link, Inc, and

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Beyond Commerce, Inc.” Id. On April 16, 2012, Mr. Bunker filed the instant motion to withdraw as

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counsel. (#110).

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Motion To Withdraw As Counsel (#110)

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In Mr. Bunker’s motion, he asserts that permitting him to withdraw is warranted, because (1)

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Mr. Bunker gave timely notice to the plaintiffs that he would be withdrawing, (2) on February 4, 2011,

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when Mr. Bunker departed as counsel, plaintiffs had retained replacement counsel, Mr. Maridon, Esq.,

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(3) Mr. Bunker has not been provided any compensation by plaintiffs since his departure on February

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4, 2011, (4) plaintiffs have not attempted to contact Mr. Bunker since his departure, (5) plaintiffs agreed

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that it was in everyone’s best interest for Mr. Bunker to withdraw, and (6) plaintiffs and Mr. Bunker had

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a “breakdown in communication” which prevented Mr. Bunker from continuing to represent plaintiffs.

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(#110).

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Mr. Bunker states that the reason he did not file a motion to withdraw prior to the court’s order

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(#111), was because he “operated under the understanding that Mr. Maridon had filed a substitution of

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counsel.” Id. Mr. Bunker provides the court with the last known addresses for plaintiffs, and asserts

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that he sent notice to plaintiff McNulty at his last known e-mail address, “informing him of [Mr.

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Bunker’s] pending withdrawal and the need to retain new counsel, [and] requesting current contact

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information and the status of this matter.” Id.

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copies of his motion (#110) to plaintiffs’ last known addresses. Id.

Mr. Bunker also asserts that he mailed and e-mailed

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Pursuant to Local Rule IA 10-6(b), “[n]o attorney may withdraw after appearing in a case except

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by leave of [c]ourt after notice has been served on the affected client and opposing counsel.” “Except

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for good cause shown, no withdrawal or substitution shall be approved if delay of discovery, the trial

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or any hearing in the case would result.” LR IA 10-6(e). Nevada Rule of Professional Conduct

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1.16(b)(5) provides that a lawyer may withdraw if the “client fails substantially to fulfill an obligation

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to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will

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withdraw unless the obligation is fulfilled.”

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Based on Mr. Bunker’s representation that plaintiffs agreed to the withdrawal in February of

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2011, that there was a “breakdown in communication,” that plaintiffs have not contacted Mr. Bunker

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since his departure in February of 2011, and that defendants do not oppose the withdrawal (#112), the

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court will permit Mr. Bunker to withdraw. LR IA 10-6(b);NRPC 1.16(b)(5). As there are no pending

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motions in this action, no trial date set, and plaintiffs have not taken any steps to prosecute their claims

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and are facing dismissal, the court finds that permitting Mr. Bunker to withdraw would not result in

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delay. LR IA 10-6(e).

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A corporation is not permitted to appear in Federal Court unless it is represented by counsel, and

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a pro se litigant may not represent a corporation. 28 U.S.C. § 1654; U.S. v. High Country Broadcasting

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Co., Inc., 3 F.3d 1244, 1245 (9th Cir. 1993); Rowland v. California Men’s Colony, 506 U.S. 194, 201-

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02 (1993). Since the court is permitting Mr. Bunker to withdraw, plaintiffs will not be represented by

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counsel, and their claims will be subject to dismissal. See Employee Painters' Trust v. Ethan

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Enterprises, Inc., 480 F.3d 993, 998 (9th Cir.2007). If plaintiffs desire to proceed in this action and to

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object to the report and recommendation that their claims be dismissed (#111), the corporate plaintiffs

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must retain counsel and individual plaintiff must either retain counsel or file a notice of appearing pro

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se within 14 days from the entry of this order. Failure to retain counsel or to file a notice of appearing

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pro se will further subject plaintiffs’ claims to dismissal. Employee Painters’ Trust, 480 F.3d at 998.

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Accordingly, and for good cause shown,

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IT IS ORDERED that plaintiffs’ counsel Benjamin L. Bunker’s Motion To Withdraw As

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Counsel (#110) is GRANTED.

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IT IS FURTHER ORDERED that the Clerk of the Court shall mail a copy of this order and the

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court’s April 16, 2012, Order and Report and Recommendation (#111) to plaintiff Beyond Commerce,

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Inc. at 750 Coronado Center Dr., #120, Henderson, Nevada 89052 and to plaintiff Local Ad Link, Inc.

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at 64 Tierra Montanosa, Rancho Santa Margarita, California 92688.

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IT IS FURTHER ORDERED that corporate plaintiffs must retain counsel and individual

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plaintiff must either retain counsel or file a notice of appearing pro se within 14 days from the entry of

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this order.

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DATED this 18th day of April, 2012.

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CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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