United States District Court, N.D. California, San Jose Division
GRANTING MOTION TO WITHDRAW AS COUNSEL RE: DKT. NO.
J. DAVILA United States District Judge.
action for declaratory judgment, Plaintiff United Genetics
Seed Company (“Plaintiff”) alleges it owes
nothing under a contract asserted against it by Defendant
Zhangye Xinze Agricultural Development Co., Ltd.
(“Defendant”). Presently before the court is
Morrison & Foerster’s (“MoFo”) motion
to withdraw as counsel for Defendant. Dkt. No. 30. Plaintiff
opposes the motion.
court finds this matter suitable for decision without oral
argument pursuant to Civil Local Rule 7-1(b). Having
carefully considered the parties’ papers in conjunction
with the record, the court finds, concludes, and orders as
1. Under Civil Local Rule 11-5(a), “[c]ounsel may not
withdraw from an action until relieved by order of Court
after written notice has been given reasonably in advance to
the client and to all other parties who have appeared in the
case.” In addition, the conduct of counsel appearing in
this district is governed by the standards of professional
conduct required of members of the State Bar of California.
Civ. L.R. 11-4(a)(1).
2. California Rule of Professional Conduct 3-700(C) provides
several grounds upon which counsel may withdraw. To that end,
Rule 3-700(C) permits counsel to withdraw if the client
“by other conduct renders it unreasonably difficult for
the member to carry out the employment effectively, ”
or “breaches an agreement or obligation to the member
as to expenses or fees.” Rules of Prof’l Conduct
of the State Bar of Cal. 3-700(C)(1)(d), (f). Another rule,
however, forbids withdrawal “until the member has taken
reasonable steps to avoid reasonably foreseeable prejudice to
the rights of the client, including giving due notice to the
client, allowing time for employment of other counsel,
complying with rule 3-700(D), and complying with applicable
laws and rules.” Rules of Prof’l Conduct of the
State Bar of Cal. 3-700(A)(2).
3. Courts generally consider several factors when deciding
whether to permit the withdrawal of counsel, including:
“(1) the reasons counsel seeks to withdraw; (2) the
possible prejudice that withdrawal may cause to other
litigants; (3) the harm that withdrawal might cause to the
administration of justice; and (4) the extent to which
withdrawal will delay resolution of the case.”
Atkins v. Bank of Am., N.A., No. 15-cv-00051-MEJ,
2015 U.S. Dist. LEXIS 89360, at *3, 2015 WL 4150744 (N.D.
Cal. July 9, 2015). Ultimately, permission to withdraw is a
discretionary decision. See LaGrand v. Stewart, 133
F.3d 1253, 1269 (9th Cir. 1998).
4. Having considered the relevant factors, the court finds
that permitting MoFo to withdraw is appropriate. In the
declaration filed in support of the motion, MoFo states it
seeks to withdraw because Defendant “is in significant
arrears in its payments” and has not paid a retainer
despite weekly requests by MoFo to fulfill its contractual
obligations with the firm. It is certainly interesting that
MoFo would choose to take action on behalf of a client for
which it had yet to receive payment. Nevertheless,
non-payment of contractual fees is notably one of the reasons
for permissive withdrawal enumerated in Rule 3-700(C). In
addition, MoFo states that it provided Defendant with notice
with its intent to withdraw on April 1, 2016, which the court
finds amounts to due notice under Rule 3-700(A) and allows
sufficient time for the employment of other counsel.
5. Although Plaintiff argues otherwise, any delay from
withdrawal will likely be minimal. While it is true that the
initial Case Management Conference scheduled for the same
date as the motion to withdraw will need to be reset given
Defendant’s anticipated status as an unrepresented
corporation, that hearing and its associated pre-hearing
deadlines are the only ones affected. And for this reason, no
harm is done to the administration of justice.
6. Moreover, the possible prejudice to Plaintiff is
unsubstantial. Outside of the delay previously addressed,
Plaintiff has not stated how it believes MoFo’s
withdrawal from representation is otherwise detrimental.
on the foregoing, MoFo’s motion to withdraw as counsel
for Defendant is GRANTED.
parties recognize, Defendant cannot appear in this court
without an attorney to represent the corporate entity.
See United States v. High Country Broad. Co., 3 F.3d
1244, 1245 (9th Cir. 1993) (“A corporation may appear
in federal court only through licensed counsel.”). The
court therefore orders Defendant to retain new counsel on or
before July 25, 2016. Any newly retained counsel shall
promptly file a notice of appearance in this action.
Defendant is advised that failure to retain counsel within
the timeframe provided could result in adverse consequences,
including an order striking its answer, entry of default and
to Civil Local Rule 11-5(b), MoFo shall remain as counsel of
record until July 25, 2016, for the purposes of receiving and
providing legal documents to Defendant unless another
attorney appears prior to the expiration of that period. MoFo
shall serve a copy of this order on Defendant and file a
certification of service demonstrating that such service has
been completed within three days of the date this order is
Case Management Conference scheduled for June 30, 2016, is
CONTINUED to 10:00 a.m. on August 25, 2016. The parties shall
file an updated Joint Case Management ...