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Board of Trustees of Ibew Local Union v. William Charles Porges Dba Accelerated Electric

February 22, 2013

BOARD OF TRUSTEES OF IBEW LOCAL UNION NO. 100 PENSION TRUST FUND, ET AL., PLAINTIFFS,
v.
WILLIAM CHARLES PORGES DBA ACCELERATED ELECTRIC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER GRANTING MOTION TO WITHDRAW AS ATTORNEY OF RECORD FOR PORGES DEFENDANTS (Docket No. 27)

I. INTRODUCTION

On January 18, 2013, counsel Chad T. Wishchuk ("Wishchuk") of the law firm of Marks, Finch, Thornton & Baird, LLP, attorney for Defendants William Charles Porges DBA Accelerated Electric and Porges Enterprises, Inc. DBA Accelerated Electric Inc. ("Porges Defendants") filed a Motion to Withdraw as Counsel for Defendants.*fn1 (Doc. 27.) Plaintiffs Board of Trustees of IBEW Local Union No. 100 Pension Trust Fund, et al. ("Plaintiffs") filed a Notice of Non-Opposition. (Doc. 28.)

The Court reviewed the motion as well as the supporting documentation and found that the matter was suitable for decision without oral argument pursuant to Rule 230(g) of the Local Rules of the United States District Court, Eastern District of California ("Local Rules"); as such, the hearing on the motion was vacated. (Doc. 33.) For the reasons set forth below, counsel's motion to withdraw is GRANTED.

II. RELEVANT PROCEDURAL HISTORY

On December 13, 2011, Plaintiffs filed a complaint against the Porges Defendants and American Contractors. (Doc. 1.) The complaint arises under the Employee Retirement Income Security Act of 1974 ("ERISA") and the Labor Management Relations Act ("LMRA") and alleges claims for breach of contract/failure to pay fringe benefit contributions, accounting, breach of fiduciary duty, and claim upon contractor's license bond. (Doc. 1.) On January 24, 2012, the Porges Defendants filed an answer; American Contractors filed an answer on April 13, 2012. (Docs. 10, 12.)

A scheduling order was issued on April 25, 2012, setting deadlines in this action, including a non-expert discovery deadline of November 9, 2012, an expert discovery deadline of December 28, 2012, a non-dispositive motion filing deadline of January 9, 2013, and a dispositive motion filing deadline of February 20, 2013. (Doc. 15.) A settlement conference was set for December 4, 2012, before Magistrate Judge Sheila K. Oberto, and the pre-trial conference and bench trial were set for May 15, 2013, and June 25, 2013, respectively, before District Judge Lawrence J. O'Neill.

On November 9, 2012, the parties requested to extend the discovery deadlines. (Doc. 17.) On November 13, 2012, District Judge O'Neill denied the requested extension of time, finding that "[t]he parties demonstrate neither good cause nor diligence to extend dates. The parties' request reveals the antithesis of diligence . . . The parties' failure to complete discovery timely is a problem they, not this Court, created." (Doc. 18, 2:19-24.)

On November 27, 2012, in preparation for the settlement conference scheduled for December 4, 2012, Plaintiffs submitted to Magistrate Judge Oberto their confidential settlement conference statement. (See Doc. 19.) Defendants, however, failed to submit a statement. On November 28, 2012, the Court ordered Defendants to submit a confidential settlement conference statement or show cause why sanctions should not be imposed. (Doc. 20.) On November 29, 2012, Defendants submitted their statement. (See Doc. 21.) An informal telephonic conference was held before Magistrate Judge Oberto on December 3, 2012, and, pursuant to the request of the parties, the settlement conference was vacated. (Doc. 24.)

On December 3, 2012, Mr. Wishchuk filed a Motion to Withdraw as Attorney for the Porges Defendants, which was denied without prejudice by the Court on January 7, 2013, for being procedurally defective. (Docs. 23, 26.)

On January 18, 2013, Mr. Wishchuk filed the instant Motion to Withdraw as Attorney for the Porges Defendants. (Doc. 27.) On February 6, 2013, Plaintiffs filed a Notice of Non-Opposition to the motion. (Doc. 28.)

On February 7, 2013, American Contractors filed a request to substitute counsel and replace Mr. Wishchuk with attorney Robert J. Stroj; the substitution of counsel was approved by the Court on February 13, 2013.*fn2 (Docs. 29, 32.)

III. DISCUSSION

The Local Rule 182(d) provides specific requirements for the withdrawal of counsel where, as here, the attorney will leave the ...


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