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Dozier v. Astrue

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 21, 2009

EARL DOZIER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER VACATING HEARING ON PLAINTIFF'S COUNSEL'S MOTION TO WITHDRAW AND DEEMING MOTION SUBMITTED ON THE PAPERS

(DOC. 15)

Vacated Hearing Date: September 25, 2009

ORDER GRANTING PLAINTIFF'S COUNSEL'S MOTION TO WITHDRAW AS ATTORNEY OF RECORD (DOC. 15) ORDER GRANTING AN EXTENSION OF TIME FOR THE FILING OF PLAINTIFF'S BRIEF TO NO LATER THAN November 10, 2009 ORDER DIRECTING THE CLERK TO UPDATE THE DOCKET AND TO SERVE THIS ORDER ON PLAINTIFF HIMSELF AT THE ADDRESS SPECIFIED IN THIS ORDER

Plaintiff is proceeding in forma pauperis and with counsel with an action seeking judicial review of a final decision of the Commissioner of Social Security (Commissioner) denying Plaintiff's application for benefits. Pursuant to 28 U.S.C. § 636(c), both parties have consented to the Magistrate's jurisdiction to conduct all proceedings, including ordering the entry of judgment, and the case was assigned to the undersigned Magistrate Judge by the order of District Judge Lawrence J. O'Neill on December 8, 2008.

Pending before the Court is the motion of Laura Krank of the Law Offices of Rohlfing & Kalagian, counsel for Plaintiff Earl Dozier, to withdraw as counsel of record, which was filed and served on August 19, 2009, along with declaration of Laura Krank in support of the motion. On the same date a copy of the motion was mailed to Plaintiff Earl Dozier at his last known address of 2559 South Lotus, Fresno, California 93706. No opposition was filed by Defendant, and Plaintiff has not responded. The Court has reviewed all the documents submitted in connection with the motion.

I. Vacating the Hearing on Counsel's Motion to Withdraw

Pursuant to Rule 78-230(h) of the Local Rules of Practice for the United States District Court, Eastern District of California, the Court finds that the motion of Plaintiff's counsel Laura Krank to withdraw as counsel for Plaintiff is a matter that may appropriately be submitted upon the record and briefs.

Accordingly, the hearing on the motion, presently set for September 25, 2009, at 9:30 a.m., IS VACATED, and the motion IS DEEMED SUBMITTED to the Court for decision.

II. The Motion to Withdraw as Attorney of Record

Moving counsel Laura Krank states that after undertaking representation of Plaintiff in October 2008, and reviewing the administrative record, counsel informed Plaintiff in early May 2008 in writing of her opinion that she could not pursue the case on Plaintiff's behalf, and she informed Plaintiff that if Plaintiff disagreed with counsel's opinion, Plaintiff could sign a substitution of attorneys and seek other counsel. As of the time the motion was filed, Plaintiff had signed the substitution form but had not retained other counsel. (Decl. of Krank, ¶¶ 2-4.)

On August 19, 2009, counsel mailed a copy of the motion to Plaintiff at Plaintiff's last-known address, which is 2559 South Lotus, Fresno, California 93706. The Court finds that Plaintiff's address has been established within the meaning of Local Rule 83-182(d). The Court further finds that withdrawing counsel gave Plaintiff adequate notice of the instant motion.

The grounds of the motion are that after diligent research of the issues, counsel has formed the opinion that she cannot pursue the matter on Plaintiff's behalf and that to do so could subject Plaintiff and counsel to sanctions under Rule 11. (Decl. of Krank, Mot. p. 4.)

Local Rule 83-182 provides that an attorney may request withdrawal if grounds exist pursuant to the Rules of Professional Conduct of the State Bar of California. Cal. Rules of Prof. Conduct, Rule 3-700(C)(1)(a) provides for withdrawal with the permission of a tribunal if the client insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law. Fed. R. Civ. P. 11(b)(1) provides that by presenting to the Court a paper, an attorney is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. Cal. Rules Prof. Conduct, Rule 3-700(C)(6) permits withdrawal if the member believes in good faith in a proceeding pending before a tribunal that the tribunal will find the existence of good cause for withdrawal.

The Court finds and concludes that counsel has established grounds for withdrawal. The motion to withdraw will be granted.

III. Extension of Time to File Plaintiff's Opening Brief

Local Rule 83-182(d) provides, "Leave to withdraw may be granted subject to such appropriate conditions as the Court deems fit." Counsel has requested that the Court grant Plaintiff time to search for counsel and extend the time for filing Plaintiff's opening brief, which is not yet due.

In order to permit Plaintiff to obtain counsel and to file an opening brief, the Court will extend the deadline for its filing until November 10, 2009.

The Court notes that upon counsel's withdrawal, Plaintiff will be proceeding pro se and will be responsible for the timely prosecution of the action even if Plaintiff fails to obtain new counsel. A failure to comply with an order of the Court, including the deadline for the filing of Plaintiff's opening brief, will result in sanctions, including dismissal of this action. Because Plaintiff is now proceeding pro se, the Court will by separate order inform Plaintiff of requirements concerning Social Security cases in this Court.

IV. Disposition

Accordingly, it IS ORDERED that

1) The hearing on counsel's motion to withdraw, presently set for September 25, 2009, at 9:30 a.m., IS VACATED; and

2) The motion of Plaintiff's counsel, Laura Krank of the Law Offices of Rohlfing & Kalagian, to withdraw as attorney of record IS GRANTED; and

3) Plaintiff's opening brief SHALL BE FILED no later than November 10, 2009; and

4) The Clerk SHALL UPDATE THE DOCKET to reflect Plaintiff's pro se status and Plaintiff's address of 2559 South Lotus, Fresno, California 93706, and SHALL SERVE this order upon Plaintiff at that address.

IT IS SO ORDERED.

20090921

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