United States District Court, N.D. California
MODIFIED ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL
RE DKT NO.34
A. WESTMORE UNITED STATES MAGISTRATE JUDGE.
C. Volker moves to withdraw his firm as Plaintiff California
Environmental Protection Association's counsel. (Mot. to
Withdraw, Dkt. No. 34.) Plaintiff did not file an opposition
to Attorney Volker's motion to withdraw. The Court held a
hearing on the motion on April 20, 2017; Attorney Volker
appeared at the hearing, but Plaintiff did not. (Dkt. No.
reviewed the parties' filings, the Court GRANTS Attorney
Volker's motion to withdraw as counsel.
filed the instant case on October 23, 2015, alleging
violations under the Federal Pollution Control Act, also
known as the Clean Water Act ("CWA"). (Compl.
¶ 1, Dkt. No. 1.) On February 2, 2016, Attorney Volker
was substituted in as attorney. (Dkt. No. 10.) On September
23, 2016, the Court granted a stipulation between the parties
which continued case management and discovery dates. (Dkt.
No. 30.) The parties stipulated to the following deadlines:
service of initial disclosures by February 15, 2017; service
of discovery requests by March 20, 2017; service of
deposition notices by April 18, 2017; commencement of
depositions after July 17, 2017; service of subpoenas on
third parties by August 21, 2017; service of expert reports
by October 23, 2017; service of expert rebuttal reports by
November 27, 2017; commencement of expert depositions by
December 11, 2017 (Plaintiff) and January 22, 2018
(Defendants); and completion of all discovery by February 19,
2018. (Id. at 2-3.)
January 17, 2017, Plaintiff moved for an extension of all
deadlines by 90 days, in order to allow the parties to
complete settlement negotiations. (Dkt. No. 32.) The Court
granted Plaintiff's motion. (Dkt. No. 33.)
March 9, 2017, Plaintiff's counsel moved to withdraw as
attorney. In his declaration, Attorney Volker explained that
Plaintiff had failed to reimburse his firm for case costs
within 30 days of counsel's presentation of such costs to
Plaintiff. (Volker Decl. ¶ 3; Dkt. No. 34.) Attorney
Volker also stated there was a breakdown in communications.
(Volker Decl. ¶ 6.) Specifically, Attorney Volker would
contact Plaintiff's president, Mr. Gerard Duenas, seeking
contact information on Plaintiff's Board of Directors and
members allegedly harmed by Defendants' violations, as
well as identification of evidence "essential to
compliance with the requirements of Rule 26(a)(1) of the
Federal Rules of Civil Procedure regarding 'Initial
Disclosure' of such information." (Volker Decl.
¶ 4.) Despite repeated attempts for such information,
Attorney Volker was "unable to secure prompt, accurate
and complete information from Mr. Duenas." In the
motion, Attorney Volker also notes that "relatedly,
ethical considerations require withdrawal of counsel."
(Mot. to Withdraw at 3.)
December 1, 2016, Attorney Volker informed Mr. Duenas by
phone that the failure to communicate "rendered it
unreasonably difficult" to continue representing
Plaintiff. (Volker Decl. ¶ 6.) Attorney Volker stated he
would request to be withdrawn as counsel unless Plaintiff
substituted other counsel to represent it. On December 29,
2016, Attorney Volker reminded Mr. Duenas of his intent to
withdraw by mail and e-mail. Attorney Volker also explained
to Mr. Duenas that because Plaintiff was a corporation,
"it could not appear in propria persona and
would need to secure substitute counsel." Attorney
Volker's letter also gave "detailed reasons
compelling our withdrawal." (Id.)
January 17, 2017, Mr. Duenas responded to Attorney Volker by
letter, declining to assent to Attorney Volker's
withdrawal as counsel. (Volker Decl. ¶ 7.) Attorney
Volker also asserts that Plaintiff failed to find and refused
to substitute new counsel, "and that the communication
failure necessitating this motion to withdraw have not been
March 9, 2017, Attorney Volker moved to withdraw as counsel.
On March 10, 2017, Attorney Volker filed a proof of service,
stating that he arranged for service of the motion to
withdraw of counsel to Plaintiff by e-mail and mail. (Dkt.
No. 35.) As of the date of this order, no opposition has been
filed by the parties.
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." The
rule further provides that:
When withdrawal by an attorney from an action is not
accompanied by simultaneous appearance of substitute counsel
or agreement of the party to appear pro se, leave to withdraw
may be subject to the condition that papers may continue to
be served on counsel for forwarding purposes, unless and
until the client appears by other counsel or pro se. When
this condition is imposed, counsel must notify the party of
this condition. Any filed consent by ...