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Dagoberto Rodriguez v. Michael J. Astrue

December 3, 2010


The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge


(Document 12)

Plaintiff's counsel Marc V. Kalagian filed the instant motion to withdraw as attorney of record for Plaintiff Dagoberto Rodriguez on October 21, 2010. (Doc. 12.) The matter was heard on December 3, 2010, before the Honorable Gary S. Austin, United States Magistrate Judge. Mr. Kalagian appeared telephonically, as did Daniel P. Talbert on behalf of the Commissioner. Plaintiff personally appeared at the hearing.*fn1


On February 25, 2010, Plaintiff Dagoberto Rodriguez filed this action challenging the Commissioner's denial of Social Security benefits. (Doc. 2.) The Commissioner lodged the administrative record on July 21, 2010. (Doc. 11.) Accordingly, Plaintiff's opening brief was due October 25, 2010. (See Doc. 6.)

On October 21, 2010, Plaintiff's counsel filed a Motion to Withdraw as Attorney of Record for Plaintiff Dagoberto Rodriguez. (Doc. 12.) Counsel served his client at his address of 483 Olson Avenue in Shafter, California via first class mail and certified mail, return receipt, that same date. (Doc. 12-1.) At the time of the filing of the motion, counsel had not received any correspondence or communication from Plaintiff. (Doc. 10, ¶ 4.) Plaintiff appears to have signed for the certified mail sent by Mr. Kalagian's office, and it is noted that the delivery address was different: an address of 339 Karca in Shafter,*fn2 California was provided. (See Doc. 12-1, Box D.)

According to counsel's declaration, following an extensive review of the administrative record, counsel advised Plaintiff in writing on August 19, 2010, that he could not pursue the case further on Plaintiff's behalf and requested "a written response with permission from [Plaintiff] to proceed based on counsel's analysis of the claim file." (Doc. 12 at 3 & Kalagian Decl., ¶ 3.) As of the date of filing the motion, Plaintiff had not advised counsel that he is authorized to dismiss the action with or without prejudice, nor had Plaintiff advised counsel that he had obtained alternate counsel. (Doc. 12 at 3 & Kalagian Decl., ¶ 4.) Counsel declared that in his opinion further pursuit of this action could subject Plaintiff and counsel to sanctions under Rule 11 of the Federal Rules of Civil Procedure. Counsel requested that he be permitted to withdraw as counsel and that Plaintiff be granted a forty-five day extension of time within which to retain alternate counsel or prepare his opening brief. (Doc. 12 at 4.)

Plaintiff personally appeared and stated on the record that he understood the nature of counsel's motion. He advised the Court that he wishes to obtain the services of another attorney.

Plaintiff was provided with sixty days within which to retain substitute or alternative counsel, and was also granted an extension of time of ninety days within which to file his opening brief, whether he is represented by alternate counsel or not. Mr. Kalagian agreed to provide Plaintiff with the administrative record.


This Court finds Plaintiff's counsel has demonstrated good cause to withdraw as Plaintiff's counsel. Accordingly, counsel's motion is GRANTED and Plaintiff is SUBSTITUTED in as counsel in pro se. This Court's records indicate Plaintiff's last known address is 483 Olson Avenue in Shafter, California 93263. Plaintiff shall keep the Court advised of any change of address, and shall provide the Court with a telephone number, if available.

Mr. Kalagian is DIRECTED to provide Plaintiff with the complete administrative record and all pleadings on or before Friday, December 10, 2010.

A status conference is scheduled for February 1, 2011, at 9:30 a.m. in Courtroom 10. Plaintiff shall be prepared to advise the Court regarding his efforts to obtain the assistance of another attorney. In the event Plaintiff has retained the service of an attorney prior to February 1, 2011, and the attorney has appeared in this action, the Court will take the status conference off calendar.

In any event, Plaintiff's opening brief shall be submitted to Defendant on or before March 3, 2011. The dates set forth in the March 1, 2010, ...

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