United States District Court, S.D. California
CLAUDINE OSGOOD, an individual, and ANTON EWING, an individual, Plaintiff,
MAIN STREAT MARKETING, LLC, a Utah limited liability company; JERROD ROBKER, an individual aka Jerrod McAllister; Does 1-100, ABC Corporations 1-100, XYZ, LLC's 1-100, Defendants.
ORDER GRANTING DEFENSE COUNSEL'S MOTION TO
WITHDRAW AS COUNSEL [Dkt. No. 44.]
GONZALO P. CURIEL United States District Judge
the Court is defense counsel's motion to withdraw as
counsel for Defendants Main Streat Marketing, LLC and Jerrod
McAllister aka Jerrod Robker (“Defendants”).
(Dkt. No. 44.) No opposition has been filed. Based on the
reasoning below, the Court GRANTS defense counsel's
motion to withdraw as counsel for Defendants.
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). The trial court has discretion
whether to grant or deny an attorney's motion to withdraw
in a civil case. See La Grand v. Stewart, 133 F.3d
1253, 1269 (9th Cir. 1998); Stewart v. Boeing Co.,
No. CV 12-5621 RSWL(AGRx), 2013 WL 3168269, at *1 (C.D. Cal.
June 19, 2013). Courts should consider the following factors
when ruling upon a motion to withdraw as counsel: (1) the
reasons why 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. Curtis v. Illumination Arts, Inc., No.
C12-0991JLR, 2014 WL 556010, at *4 (W.D. Wash. Feb. 12,
2014); Deal v. Countrywide Home Loans, No. C09-01643
SBA, 2010 WL 3702459, at *2 (N.D. Cal. Sept. 15, 2010). Local
Civil Rule 83.3(f)(3) also provides:
Withdrawals. (a) A notice of motion to withdraw as attorney
of record must be served on the adverse party and on the
moving attorney's client. (b) A declaration pertaining to
such service must be filed. Failure to make service as
required by this section or to file the required declaration
of service will result in a denial of the motion.
Civil R. 83.3(f)(3). Here, defense counsel has filed a
certificate of service which indicates that the motion was
served on her clients, Defendants, and Plaintiffs. (Dkt. No.
44-3.) Rule 3-700 of the California Rules of Professional
Conduct of the State Bar of California provides that an
attorney may request a withdrawal if it is unreasonably
difficult for counsel to carry out his employment effectively
or breaches an agreement as to expenses or fees. Cal. R.
Prof. Conduct 3-700(C).
to the motion to withdraw, defense counsel states that
according an engagement agreement between Defendants and
defense counsel, Defendants agreed to pay expenses and fees
incurred in defending this action; however, they have not
paid any of the invoices since the inception of the case.
(Dkt. No. 45, Tagvoryan Decl. ¶¶ 2-4.) In October
and November 2016, counsel warned Defendants that their
failure to pay outstanding invoices and lack of communication
could result in a withdrawal as counsel. (Id. ¶
5.) In addition since mid-November 2016, Defendants have
become increasingly non-communicative and non-responsive to
counsel's telephone calls and emails and have now
completely stopped responding. (Id. ¶ 6.)
Court concludes that defense counsel has demonstrated
sufficient reasons to be relieved as counsel. The Court also
concludes that the withdrawal will not prejudice the
plaintiff, harm the administration of justice or delay
resolution of the case. The case is still in its early stages
on the above, the Court GRANTS defense counsel's motion
to withdraw as counsel for Defendants. While Defendant Jerrod
McAllister, an individual, may proceed pro se,
Defendant Main Streat Marketing, LLC, a partnership, may not
proceed without counsel. See Rowland v. California
Men's Colony, Unit II Men's Advisory Council,
506 U.S. 194, 202 (1993) (“lower courts have uniformly
held that 28 U.S.C. § 1654, providing that
‘parties may plead and conduct their own cases
personally or by counsel, ' does not allow corporations,
partnerships, or associations to appear in federal court
otherwise than through a licensed attorney.”); see
also Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305,
1309-10 (2d Cir.1991) (partnership not allowed to be
represented by non-attorney partner); Civil Local Rule 83.3k
(“all other parties, including corporations;
partnerships and other legal entities may appear in court
only through an attorney permitted to practice pursuant to
Civil Local Rule 83.3.”).
the Court will allow Main Streat Marketing, LLC 30 days to
obtain substitute counsel and have counsel file a notice of
appearance. Main Streat Marketing, LLC is notified
that if it fails to obtain new counsel and have counsel file
a notice of appearance, it may be subject to default
proceedings. See United States v. High Country
Broadcasting Co. Inc., 3 F.3d 1244, 1245 (9th Cir.
1993). Mr. McAllister must notify the Court of his currently
mailing address within 30 days from the date of this order.
hearing set for April 7, 2017 shall be
It appears that Plaintiffs, proceeding
pro se, and Defendants, without their counsel, may have
negotiated a settlement amongst themselves. (See
Dkt. Nos. 42, 47.) The Court notes that any dismissal of
Defendant Main Streat Marketing, LLC must be executed by an