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McClintic v. United States Postal Service

United States District Court, Ninth Circuit

January 7, 2014

JOSEPH ROBERT McCLINTIC, et al., Plaintiffs,


GARY S. AUSTIN, Magistrate Judge.


On November 22, 2013, Bonnie J. Anderson, counsel for Plaintiffs Joseph Robert McClintic and Marlene Hubbell, Co-Trustee of the Joseph Robert McClintic Living Trust (collectively "Plaintiffs"), filed a Motion to Withdraw as Counsel of Record for Plaintiffs.[1] (Doc. 47). Ms. Hubbell filed an Opposition on December 4, 2013. (Doc. 50). Defendant Bertha Cervantes ("Defendant"), the only remaining defendant in the case, did not take a position on Plaintiffs' counsel's motion to withdraw. (Doc. 59, Tr. of Hrg. on Mtn. to Withdraw, p. 20). The matter was heard on December 13, 2013 before the Honorable Gary S. Austin, United States Magistrate Judge. Marlene Hubbell and Attorney Anderson both appeared in person; Defendant's counsel, Jacob J. Rivas, appeared telephonically. Ruling from the bench at the conclusion of the hearing, the Court GRANTED the Motion to Withdraw in part and DENIED it in part. ( See Doc. 57). This Order memorializes the Court's ruling and sets forth the Court's reasoning.[2]


This case concerns the alleged financial elder abuse of Plaintiff Joseph Robert McClintic by Defendant Bertha Cervantes. Plaintiffs initially filed this case against the United States Postal Service, Bertha Cervantes (a United States postal carrier at the time), and Does 1 through 50. (Doc. 2). Plaintiffs alleged that Ms. Cervantes' had executed a "sweetheart swindle scam" against Plaintiff McClintic, conning him out of approximately $38, 000 in gifts and monies. Subsequently, District Judge Lawrence J. O'Neill dismissed all claims against the United States with prejudice, and the Clerk of this Court entered judgment in favor of the United States. (Docs. 27 and 28).

Thereafter, Plaintiffs filed a First Amended Complaint ("FAC"). (Doc. 34). The FAC contains nine state law causes of action including financial elder abuse; fraud, deceit, and concealment; misrepresentation; negligence; negligence per se; conversion; trespass to chattels; constructive trust; and common law unjust enrichment claims. (Doc. 34). Defendant Cervantes has filed a motion to dismiss all the state law claims on statute of limitations grounds, which is pending before District Judge O'Neill. (Doc. 41). The FAC also contains two federal causes of action. One alleges violations of 18 U.S.C. § 201 and 5 C.F.R. §§ 2635.202 and 2635.204. The other federal claim is a civil claim brought under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961. On December 20, 2013, Judge O'Neill issued an Order to Show Cause, requiring Plaintiffs "to show cause in writing on or before January 10, 2014 why the two federal claims should not be dismissed and therefore why the entire FAC should not be dismissed for lack of subject matter jurisdiction." (Doc. 58 at 3).

The Court has not yet issued a scheduling order in this matter. As a result, the discovery process has not commenced and dates for non-dispositive and dispositive motions, the pretrial conference and trial have not been set.


A. Applicable Law

Rule 182(d) of the Local Rules of the United States District Court, Eastern District of California provides that an attorney who has appeared on behalf of a client may not withdraw, leaving the client in propria persona, without leave of court. The rule further states that "[w]ithdrawal of an attorney is governed by the Rules of Professional Conduct of the State Bar of California" ("California Rules of Professional Conduct"). The California Rules of Professional Conduct are interpreted according to California law. See Image Technical Services, Inc. v. Eastman Kodak Co., 820 F.Supp. 1212, 1215 (N.D. Cal. 1993).

Permissive withdrawal of an attorney, which is at issue here, is addressed by Rule 3-700(C) of the California Rules of Professional Conduct. Rule 3-700(C)(1)(d) provides that an attorney may request permission to withdraw if the client "renders it unreasonably difficult for the [attorney] to carry out the employment effectively." The decision to grant or deny a motion to withdraw as counsel is committed to the sound discretion of the trial court. See United States v. Carter, 560 F.3d 1107, 1113 (9th Cir. 2009); Washington v. Sherwin Real Estate, Inc., 694 F.2d 1081, 1087 (7th Cir. 1982); Rus, Millband & Smith v. Conkle & Olesten, 113 Cal.App.4th 656, 673 (2003); Estate of Falco, 188 Cal.App.3d 1004, 1014 (1987) ("To protect the best interests of the client, a trial court should have broad discretion in allowing attorneys to withdraw.").

The lack of a cooperative relationship between an attorney and her client may, at times, justify the attorney's withdrawal. See, e.g., U.A. Local 342 Joint Labor-Management Committee v. South City Refrigeration, Inc., 2010 WL 1293522, *3 (N.D. Cal. Mar. 31, 2010) (client's failure to cooperate or communicate effectively justified granting counsel leave to withdraw); Lewis v. Nevada County, 2009 WL 463510, *1 (E.D. Cal. Feb. 23, 2009) (client's failure to cooperate and heed counsel's advice constituted sufficient grounds to allow counsel to withdraw). However, withdrawal is only proper if the client's interest will not be unduly prejudiced or delayed. Ramirez v. Sturdevant, 21 Cal.App.4th 904, 915 (1994) (an attorney may not withdraw "at a critical point and thereby prejudic[e] the client's case"); also see Cal. R. Prof. Conduct 3-700(A) ("a member shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client").

Finally, courts may consider the following factors in ruling on a motion for permissive withdrawal: (1) the reasons why the withdrawal is sought; (2) the prejudice withdrawal may cause to other litigants; (3) the harm withdrawal might cause to the administration of justice; and (4) the degree to which withdrawal will delay the resolution of the case. See, e.g., Das v. WMC Mortgage Corp., 2011 U.S. Dist. LEXIS 119058, *3 (October 14, 2011); Leatt Corp. v. Innovative Safety Tech., LLC, 2010 ...

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