Curtis et al v. Illumination Arts, Inc. et al

Filing 75

ORDER granting in part and denying in part 61 Defendants' Motion to Withdraw as Attorney, by Judge James L. Robart.(MD)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9
10

CHARA CURTIS, et al.,
Plaintiffs,

11

ILLUMINATION ARTS, INC., et al.,
Defendants.

14
15
16

ORDER GRANTING IN PART
AND DENYING IN PART
MOTION TO WITHDRAW

v.

12
13

CASE NO. C12-0991JLR

I.

INTRODUCTION

Before the court is Defendants’ counsel’s second motion to withdraw from

17 representation of Defendants Illumination Arts, Inc. (“IAI”), Illumination Arts
18 Publishing, LLC (“IAP”), John M. Thompson, and Kimmie Lynn Thompson. (2d Mot.
19 to Withdraw (Dkt. # 61).) ). Having reviewed the motions, all submissions filed in
20 support of and opposition thereto, the balance of the record, and the applicable law, the
21 court grants in part and denies in part the motion. The court has already granted Mr.
22 Thompson and Ms. Thompson leave to appear pro se. (1/10/14 Order (Dkt. # 65) at 3.)
ORDER- 1

1 Accordingly, the court grants Defendants’ counsel’s request to withdraw his
2 representation of Mr. Thompson and Ms. Thompson. However, for the reasons described
3 below, the court denies Defendants’ counsel’s request to withdraw his representation of
4 the business entities, IAI and IAP.
5

II.

6

BACKGROUND

On June 8, 2012, Plaintiffs Chara Curtis, Cynthia Aldrich, and Alfred Currier filed

7 a complaint alleging that Defendants breached their publishing contract and infringed
8 their copyrights. (See generally Compl. (Dkt. # 1).) Defendants Mr. and Ms. Thompson
9 initially filed notices of appearance to appear pro se. (See Mr. Thompson Not. of App.
10 (Dkt. # 7); Ms. Thompson Not. of App. (Dkt. # 8).) Then, on July 25, 2012, Mr.
11 Matthew King took over as counsel for all defendants. (See King Not. of App. (Dkt.
12 # 12).)
13

In response to Plaintiffs’ first motion for partial summary judgment (SJ Mot. (Dkt.

14 # 22)), the court ruled that Defendants IAI and IAP are liable to Plaintiffs for breach of
15 contract. 1 (See 5/29/13 Order (Dkt. # 29) at 10, 13.) The court declined to pierce the
16 corporate veil with respect to Mr. Thompson’s and Ms. Thompson’s personal liability.
17 (Id. at 18-19.) The court also ruled that all Defendants were liable for willful copyright
18 infringement. (Id. at 19-23.) Based on the foregoing, the court granted Plaintiffs a
19 permanent injunction and ordered Defendants to return to Plaintiffs all infringing copies
20
1

The court ruled that IAP is liable for IAI’s breach of contract because it is a mere
continuation of IAI and both entities will be subject to the same liability with respect to
Plaintiffs’ claims because the corporate veil between IAI and IAP has been pierced. (Id. at 13,
22 18.)

21

ORDER- 2

1 of Plaintiffs’ books. (Id. at 23-24.)
2

In response to Plaintiffs’ second motion for partial summary judgment (2d SJ Mot.

3 (Dkt. # 30)), the court ruled that Mr. Curtis was underpaid $5,790.84 in royalty payments.
4 (See 7/18/13 Order (Dkt. # 43) at 9.) The court reserved judgment on the contract
5 damages of Ms. Aldrich and Mr. Currier. (See id. at 9-10.) The court also reserved
6 judgment on Plaintiffs’ request for an award of maximum statutory damages for
7 Defendants’ willful copyright infringement. (See id. at 14.) Finally, the court struck the
8 trial date. (Id. at 21.)
9

In response to Plaintiffs’ third motion for sanctions and summary judgment (3d SJ

10 Mot. (Dkt. # 45)), the court pierced the corporate veil between IAI and IAP, on one hand,
11 and Mr. Thompson, on the other, issued an order to show cause with respect to its prior
12 ruling on partial summary judgment concerning the amount of Mr. Curtis’s contract
13 damages, entered default against Defendants with respect to Plaintiffs’ claims for breach
14 of contract and copyright infringement, reserved ruling on Plaintiffs’ request for
15 maximum statutory damages on their copyright infringement claims and damages for
16 other claims until after an evidentiary hearing on damages pursuant to Federal Rule of
17 Civil Procedure 55(b)(2)(B), and granted Plaintiffs’ request for reasonable attorney’s fees
18 and expenses. (11/21/13 Order (Dkt. # 55).)
19

Mr. King filed his first motion to withdraw on August 23, 2013, three days prior to

20 filing the Defendants’ response to Plaintiffs’ third motion for sanctions and summary
21 judgment. (See Mot. to Withdraw (Dkt. # 54).) The court denied this motion (without
22 prejudice to re-filing) because Mr. King failed to adhere to the court’s Local Rules,
ORDER- 3

1 including the Rules (1) requiring the submission of factual support, such as an affidavit or
2 declaration, if the motion requires consideration of facts not in record and (2) regarding
3 the format for electronic signatures. (See generally 10/22/13 Order (Dkt. # 54) at 3 n.2
4 (citing Local Rules W.D.Wash., LCR 83.2(b)(3), LCR 7(b)(1), LCR 11(a), W.D. Wash.
5 Electronic Filing Procedures for Civil and Criminal Cases § III(L)).) In addition, the
6 court counseled that compliance with the Local Rules does not guarantee that the court
7 will grant a motion to withdraw and that it considers a variety of factors before granting
8 such a motion. (Id. at 3-4.)
9

Following further submissions from the parties, the court initially set the

10 evidentiary hearing on damages referenced in its November 21, 2013, order for April 4,
11 2014. (1/10/14 Order at 5.) However, following a motion to modify the schedule by Mr.
12 Thompson and Ms. Thompson (Dkt # 67), the court rescheduled the evidentiary hearing
13 for April 30, 2014. (1/23/14 Order (Dkt. # 71).) As a part of its January 10, 2014, order,
14 the court also granted the Thompson’s request to proceed pro se in this litigation.
15 (1/10/14 Order at 3.)
16

Mr. King filed his second motion to withdraw from representation of Defendants

17 on January 6, 2014. (See 2d Mot. to Withdraw.) Mr. King’s second motion to withdraw
18 is virtually identical to his first. (Compare Mot. to Withdraw with 2d Mot. to Withdraw.)
19 Mr. King requests that he be permitted to withdraw because “Defendants, [sic] have
20 terminated the legal service contract between the parties effective immediately.” (2d
21 Mot. to Withdraw at 1.) In addition, he states that he has “explained to Defendants that
22 all business entities are required by law to be represented by an attorney admitted to
ORDER- 4

1 practice before this court and that failure to obtain a replacement attorney by the date the
2 withdrawal is effective may result in . . . entry of default against the business entity as to
3 any claim of other parties.” (Id. at 1-2.) Mr. King submits no declaration or affidavit
4 providing evidence of this fact (see generally Docket), and his signature upon the motion
5 itself simply states “/s/”, which is not compliant with the court’s Local Rules for
6 electronic signatures. See W.D. Wash. Electronic Filing Procedures for Civil and
7 Criminal Cases § III(L); see also Local Rules W.D. Wash., LCR 11(a).
8

In addition, although Mr. Thompson confirms that Mr. King was discharged from

9 representing both of the Thompsons personally, Mr. Thompson disputes Mr. King’s
10 assertion that he was also discharged from representing IAI and IAP. (See Thompson
11 Resp. (Dkt. # 68); see also Thompson Amend. Decl. (Dkt. # 53) ¶ 25; Thompson Decl.
12 (Dkt. # 51) Ex. 2 at 1, Ex. 3 at 1, Ex. 11 at 1 (“Please note that this does not discharge
13 you from your duty to provide professional services on behalf of [IAI] and [IAP] . . . .”).)
14 Mr. King has not provided any factual support for his assertion, and the Thompsons only
15 concede that they discharged Mr. King from representing them personally.
16
17

III.

ANALYSIS

Western District of Washington Local Rule LCR 83.2(b) provides that “no

18 attorney shall withdraw an appearance in any cause, civil or criminal, except by leave of
19 court.” Local Rules W.D. Wash. LCR 83.2(b)(1). To request withdrawal, counsel must
20 file a motion including “a certification that the motion was served on the client and
21 opposing counsel.” Id. As discussed above, the court has granted the Thompson’s
22 request to proceed pro se, and so the court grants Mr. King’s motion to withdraw his
ORDER- 5

1 representation of the Thompsons.
2

The court’s analysis of Mr. King’s motion with respect to the business entites, IAI

3 and IAP, however, is different. If withdrawal will leave a business entity unrepresented, 2
4 counsel must certify that:
5
6
7

[H]e or she has advised the business entity that it is required by law to be
represented by an attorney admitted to practice before this court and that
failure to obtain a replacement attorney by the date the withdrawal is
effective may result in the dismissal of the business entity’s claims for
failure to prosecute and/or entry of default against the business entity as to
any claims of other parties.

8
Local Rules W.D. Wash. LCR 83.2(b)(3).
9
Just like his first motion, Mr. King’s second motion to withdraw fails to fully
10
comply with Local Rule LCR 83.2(b)(3). See id. Although Mr. King claims to have
11
“explained to [his corporate clients] that all business entities are required by law to be
12
represented by an attorney . . .” and the consequences of failing to obtain replacement
13
counsel (see 2d Mot. to Withdraw at 1-2), Mr. King has not provided any factual support
14
for this assertion (see generally id.). See Local Rules W.D. Wash. LCR 7(b)(1) (“If the
15
motion requires consideration of facts not appearing of record, the movant shall also
16
serve and file copies of all affidavits, declarations, photographic or other evidence
17
presented in support of the motion.”). Mr. King did not provide a declaration in support
18
of his assertions. (See generally 2d Mot. to Withdraw.)
19
20
21
22

2

While individuals and sole proprietorships may appear in court pro se, “a business
entity . . . must be represented by counsel.” Local Rules W.D. Wash. LCR 83.2(b)(3).

ORDER- 6

1

In addition, however, even Mr. King’s signature on his motion does not certify the

2 truth of his statement as an officer of the court because his signature does not conform to
3 the court’s Local Rules and other requirements. The electronic signature standard for the
4 local electronic filing procedures requires the format of “s/Name” for electronic
5 signatures. See Local Rules W.D. Wash. LCR 11(a); W.D. Wash. Electronic Filing
6 Procedures for Civil and Criminal Cases § III(L). Mr. King’s signature, however,
7 appears simply as “/s/”. (See 2d Mot. to Withdraw at 2.) Thus, Mr. King’s signature
8 does not comply with the court’s required format, and his motion, therefore, is unsigned.
9

This same problem with Mr. King’s signature occurred on Mr. King’s first motion

10 to withdraw and was identified and explained by the court. (See 10/22/13 Order at 3 n.2.)
11 Nevertheless, Mr. King filed a second motion to withdraw containing some of the same
12 deficiencies as his first motion. (Compare Mot. to Withdraw with 2d Mot. to Withdarw.)
13 Thus, Mr. King still has not satisfied the technical requirements of Local Rule LCR
14 83.2(b).
15

In addition, in its order denying his first motion to withdraw, the court noted that

16 even technical compliance with the court’s Local Rules would not necessarily guarantee
17 that the court would grant a motion to withdraw. (Id. at 3-4.) “[T]he trial court retains
18 wide discretion in a civil case to grant or deny [a] motion to withdraw.” Bohnert v.
19 Burke, No. CV-08-2303-PHX-LOA, 2010 WL 5067695, at *1 (D. Ariz. Dec. 7, 2010)
20 (citing Le Grand v. Stewart, 133 F.3d 1253, 1269 (9th Cir.1998); Ohntrup v. Firearms
21 Center, Inc., 802 F.2d 676, 679 (3d Cir. 1986)). The court noted various factors that it
22 considers when evaluating a motion to withdraw, including (1) the reasons why
ORDER- 7

1 withdrawal is sought; (2) the prejudice withdrawal may cause to other litigants; (3) the
2 harm withdrawal might cause to the administration of justice; and (4) the degree to which
3 withdrawal will delay the resolution of the case. (10/22/13 Order at 4 (citing Bohnert,
4 2010 WL 5067695, at *2 and In re Ryan, No. 08–6250–HO, 2008 WL 4775108, at *3 (D.
5 Or. Oct. 31, 2008).) The court considers those factors now.
6

Even if Plaintiffs’ counsel’s stated reasons for seeking withdrawal are valid, the

7 other factors the court considers weigh against granting the motion. Unlike the
8 Thompsons, neither IAI not IAP may appear pro se in this litigation. “A business entity,
9 except a sole proprietorship, must be represented by counsel.” W.D. Wash. Local Rule
10 GR 2(g)(4)(B). Further, the court is skeptical of IAI’s and IAP’s ability to find
11 replacement counsel given the present posture of the case and public nature of
12 Defendants’ dispute with their counsel. (See, e.g., Dkt. # 68.) Defendants’ counsel’s
13 motion to withdraw from IAP’s and IAI’s representation threatens to prejudice IAI and
14 IAP and cause significant delays at a time when the litigation is nearly at an end. Such
15 delays at this point in the proceeding would prejudice the Plaintiffs as well and harm the
16 administration of justice. After all, the evidentiary hearing with respect to Plaintiffs’
17 motion for default judgment is scheduled for April 30, 2014. (1/23/14 Order at 1-2.)
18 There should be very little left to the litigation following this one-day hearing. Even if
19 the court were to credit counsel’s reasons for his desire to withdraw from representing
20 IAI and IAP, the other factors the court considers weigh against withdrawal. The court,
21 therefore, is unable to conclude that it can reasonably permit counsel to withdraw from
22 representation of IAI and IAP at this point in the litigation. Accordingly, in addition to
ORDER- 8

1 the technical deficiencies noted above, the court must deny Defendants’ counsel’s motion
2 with respect to IAP and IAI for the foregoing substantive reasons as well.
3
4

IV.

CONCLUSION

Based on the foregoing, the court GRANTS in part and DENIES in part

5 Defendants’ counsel’s motion to withdraw his representations (Dkt. # 61). The court
6 GRANTS the motion with respect to Mr. Thompson and Ms. Thompson, but DENIES the
7 motion with respect to IAI and IAP.
8

Dated this 11th day of February, 2014.

9

11

A

12

JAMES L. ROBART
United States District Judge

10

13
14
15
16
17
18
19
20
21
22
ORDER- 9