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Roach v. Tate Publishing & Enterprises, LLC

United States District Court, E.D. California

April 19, 2017

TERRI HAYNES ROACH, Plaintiff,
v.
TATE PUBLISHING & ENTERPRISES, LLC, et al., Defendants.

         ORDER GRANTING DEFENDANTS' COUNSEL'S MOTION TO WITHDRAW AS COUNSEL OF RECORD AND DIRECTING CLERK OF THE COURT TO TERMINATE MICHAEL J. F. SMITH, JOHN L. MIGLIAZZO, AND MICHAEL J. F. SMITH, APC, AS ATTORNEYS FOR DEFENDANTS (ECF NOS. 45, 48, 50, 53, 54, 56)

         Currently before the Court is a motion to withdraw from Defendants Richard Tate, Tate Publishing & Enterprises, LLC, and Tate Music Group's counsel, John L. Migliazzo, Michael J. F. Smith, and Michael J. F. Smith, APC.[1] (ECF No. 45.) A hearing was held on April 19, 2017. Samer Salhab appeared telephonically for Plaintiff and John Migliazzo, counsel for Defendants, appeared telephonically. Defendant Richard Tate and representatives for Defendants Tate Publishing & Enterprises, LLC, and Tate Music Group did not appear at the hearing.

         I.

         BACKGROUND

         On August 28, 2015, the Court granted Defendants' motion to compel arbitration and stay these proceedings. (ECF No. 24.) The Court also directed the parties to file a status report informing the Court of the status of the arbitration proceedings on or before February 29, 2016. On February 23, 2016, a status report was filed, and on February 24, 2016, the Court ordered the parties to continue to file a status report every ninety days until the stay in this action was lifted. (ECF No. 28.) On November 10, 2016, at the request of the parties, the Court set a status conference regarding the stay of this case. (ECF No. 34.) After the status conference on November 16, 2016, the Court issued an amended order on November 17, 2016, requiring the parties to file the next status report on or before December 15, 2016. (ECF No. 35.)

         In the December 15, 2016 status report, Plaintiff indicated that the American Arbitration Association (“AAA”) represented to Plaintiff's counsel that Defendants have failed to pay their arbitration dues. (ECF No. 37.) On December 16, 2016, the Court ordered the parties to appear for a status conference. (ECF No. 38.) The parties appeared for a status conference on January 12, 2017, during which Defendants' counsel, John Migliazzo, indicated that he planned to file a motion to withdraw as counsel for Defendants. (ECF No. 41.) On January 12, 2017, the Court issued an order setting a briefing schedule. (ECF No. 42.)

         On February 16, 2017, Defendants' counsel filed a motion to withdraw as counsel. (ECF No. 45.) On March 9, 2017, the Court issued an order requiring Defendant Richard Tate and representatives for Defendants Tate Publishing & Enterprises, LLC, and Tate Music Group to appear at the March 22, 2017 hearing. (ECF No. 47.) The Court directed Defendants' counsel to personally serve a copy of the March 9, 2017 order on Defendants. The Court also directed Defendants' counsel to file an affidavit in compliance with Local Rule 182(d).

         On March 15, 2017, Defendants' counsel filed a supplemental declaration which included a request for additional time in the event Defendants do not appear at the March 22, 2017 hearing so that counsel can reach out to Defendant Richard Tate. (March 15, 2017 Declaration of John Migliazzo (“Migliazzo Decl.”), ECF No. 48.)

         On March 16, 2017, the Court continued the hearing on the motion to withdraw as counsel to April 19, 2017, at 10:00 a.m. in Courtroom 9. The Court stated that the other provisions of the March 9, 2017 order would apply to the April 19, 2017 hearing. The Court found it necessary to have Defendant Richard Tate and representatives for Defendants Tate Publishing & Enterprises, LLC, and Tate Music Group personally appear at the April 19, 2017 hearing. However, the Court stated that Defendant Richard Tate and representatives for Defendant Tate Publishing & Enterprises, LLC, and/or Defendant Tate Music Group could request to appear by video or telephonically with the request coming from Defendants' counsel. The Court also required Defendants' counsel to personally serve all Defendants with a copy of the March 16, 2017 order and the March 9, 2017 order and file proof of service on or before April 12, 2017.

         On March 16, 2017, the Court granted Plaintiff's motion to lift the stay and the stay in this action was lifted. (ECF No. 51.)

         Defendants' counsel did not file a proof of service by the deadline, so on April 17, 2017, the Court issued an order requiring Defendants' counsel to file a proof of service or a status report by 5:00 p.m. on April 17, 2017. (ECF No. 53.) On April 17, 2017, Defendants' counsel filed a status report and an affidavit of the process server showing that Defendants were served on April 4, 2017, by personally serving Richard Tate. (ECF No. 54.) On April 19, 2017, Defendants' counsel filed a second affidavit of the process server, which clarified which documents the process server served on Defendants. (ECF No. 56.)

         II.

         STANDARD

         The Local Rules of the Eastern District of ...


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