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Jigneshi J. Jariwala v. Janet Napolitano Secretary For the Department of

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


February 21, 2011

JIGNESHI J. JARIWALA,
PLAINTIFF,
v.
JANET NAPOLITANO SECRETARY FOR THE DEPARTMENT OF HOMELAND SECURITY., ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL

(re: dkt. #9)

Counsel for Plaintiff, Ms. Valerie Ly, has moved to withdraw as counsel on the grounds that she is no longer with the firm representing Plaintiff and no longer has access to his file. See Dkt. #9. Pursuant to Civil Local Rule 7-1(b), the Court deems this motion appropriate for 20 resolution without oral argument. Accordingly, the February 24, 2011 motion hearing is vacated.

For good cause shown, the Court GRANTS Ms. Ly's motion to withdraw as counsel.

was represented by Attorney Teresa Salazar-Cosmos of the Immigration Practice Group Law Firm.

Counsel [dkt. #5]. On December 2, 2010, Ms. Ly filed a motion to withdraw as counsel. See Dkt. #9. In that motion, Ms. Ly stated that the Immigration Practice Group Law Firm informed Plaintiff 28 that, as of November 23, 2010, it would not provide further legal representation and returned to

I. BACKGROUND

Plaintiff filed his Complaint on September 28, 2010. See Dkt. #1. At that time, Plaintiff

On October 28, 2010, Ms. Ly substituted in as counsel for Plaintiff. See Notice of Substitution of

Plaintiff his case file. In addition, Ms. Ly stated that she is no longer with the Immigration Practice Group Law Firm, and does not have access to Plaintiff's case file.

On January 13, 2011, Defendants filed a motion to dismiss for lack of jurisdiction. See Dkt. #12. That motion is set for hearing on April 7, 2011. To ensure that Ms. Ly's withdrawal would 5 cause as little prejudice to Plaintiff as possible, this Court ordered Ms. Ly to file a declaration and 6 proof of service establishing that: (1) she has informed Plaintiff of the Federal Legal Assistance Self-Help Center ("FLASH") at the San Jose Courthouse; and (2) she has informed Plaintiff of the 8 procedures for registering for the Court's electronic court filing (ECF) system. See February 15, 2011 Order [dkt. #15]. In addition, the Court ordered Ms. Ly to provide the Court with Plaintiff's 10 current mailing address. Id.

On February 16, 2011, Ms. Ly provided a declaration and proof of service responding to the Court's Order. See Decl. of Valerie Ly [dkt. #16]. Specifically, Ms Ly's declaration stated that 13 she: (1) informed Plaintiff of her motion to withdraw as counsel on December 3, 2010; and (2) 14 mailed and e-mailed a February 16, 2011 letter informing Plaintiff of the Court's FLASH Program, 15 the Court's ECF system, and the Court's February 15, 2011 Order. In addition, Ms. Ly provided 16 the Court with Plaintiff's mailing address and e-mail address.

II. LEGAL STANDARD

"An attorney may not withdraw as counsel except by leave of court." Darby v. City of Torrance, 810 F. Supp. 275, 276 (C.D. Cal. 1992). Permission to withdraw is discretionary.

See United States v. Carter, 560 F.3d 1107, 1113 (9th Cir. 2009); Washington v. Sherwin Real Civil Local Rule 11-4(a)(1) requires attorneys practicing in this district to "comply with the standards of professional conduct required of members of the State Bar of California." Rule 3-700 24 of the Rules of Professional Conduct of the State Bar of California governs an attorney's 25 withdrawal as counsel. Before withdrawing for any reason, an attorney must take "reasonable 26 steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due 27 notice to the client, allowing time for employment of other counsel, complying with rule 3-700(D), 28 and complying with applicable laws and rules." CAL. R. PROF. CONDUCT 3-700(A)(2).

Estate, Inc., 694 F.2d 1081, 1087 (7th Cir. 1982).

III. ANALYSIS

As Ms. Ly is no longer with the law firm representing Plaintiff, no longer has access to

Plaintiff's case file, and has taken reasonable steps to avoid foreseeable prejudice to Plaintiff, her 4 motion to withdraw as counsel is granted. As a result of this Order, Plaintiff must obtain new 5 counsel or proceed pro se. If he cannot obtain new counsel, Plaintiff will be responsible for filing 6 an Opposition, or Statement of Non-opposition, to the pending motion to dismiss. Under the Court's Local Rules, Plaintiff's Opposition, or Statement of Non-opposition, is due not less than 21 8 days before the hearing. See Civil Local Rule 7-3. With a motion hearing scheduled for Thursday, April 7, 2011, Plaintiff's Opposition is due on Thursday, March 17, 2011.

IV. CONCLUSION

For the foregoing reasons, Ms. Ly's motion to withdraw as counsel is GRANTED. The

February 24, 2011 motion hearing is vacated. The Court ORDERS Ms. Ly to serve this Order on

Plaintiff by e-mail and certified mail, inform Plaintiff that the February 24, 2011 hearing is 14 vacated, and file proof of service with the Court by Tuesday, February 22, 2011.

If Plaintiff wishes to represent himself, the Court urges him to contact the FLASH Program as soon as possible by calling (408) 297-1480 or by signing up for an appointment with FLASH at 17 the San Jose Courthouse located at 280 S. First Street, San Jose, California, 95113.

IT IS SO ORDERED.

20110221

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