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Brown v. City of Antioch

United States District Court, N.D. California, San Francisco Division

June 6, 2017

STACY BROWN, Plaintiff,
v.
CITY OF ANTIOCH, et al., Defendants.

          ORDER GRANTING MOTION TO WITHDRAW RE: ECF NO. 30

          LAUREL BEELER United States Magistrate Judge

         INTRODUCTION

         DeWitt Lacy moves to withdraw as counsel for the plaintiff, Stacy Brown, because Mr. Brown “has completely withdrawn his participation” from the litigation.[1] Mr. Lacy notified Mr. Brown of his intention to withdraw by mail five times between December 12, 2016, and April 12, 2017, and mailed the pending motion on May 17.[2] Mr. Brown, however, did not respond.[3] The defendants do not oppose Mr. Lacy's motion.[4]

         The court can decide the matter without oral argument and vacates the June 22, 2017 hearing. Civil L.R. 7-1(b). The court grants the motion because Mr. Brown's failure to communicate establishes good cause, and because Mr. Lacy has taken sufficient steps to alert Mr. Brown of his intention to withdraw and to avoid possible harm stemming therefrom.

         GOVERNING LAW

         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.” Until the client appears pro se or obtains other representation, motions to withdraw as counsel may be granted on the condition that current counsel continue to serve on the client all papers from the court and from the opposing parties. Civil L.R. 11-5(b).

         Withdrawal is governed by the California Rules of Professional Conduct. See Nehad v. Mukasey, 535 F.3d 962, 970 (9th Cir. 2008) (applying California Rules of Professional Conduct to attorney withdrawal); see also Dieter v. Regents of Univ. of Cal., 963 F.Supp. 908, 910 (E.D. Cal. 1997). Under California Rule of Professional Conduct 3-700(C), counsel may withdraw if the client makes it unreasonably difficult for the attorney to carry out his or her duties. Cal. R. Prof. Conduct 3-700(C)(1)(d). Failure to maintain regular communication with one's counsel constitutes good cause for withdrawal. Ortiz v. Freitas, No. 14-cv-00322-JSC, 2015 WL 3826151, at *2 (N.D. Cal. June 18, 2015).

         In compliance with California Rule of Professional Conduct 3-700(A)(2), counsel may not “withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client.” These steps include: (1) giving due notice to the client; (2) allowing time for employment of other counsel, pursuant to Rule 3-700(D); and (3) complying with applicable laws and rules. Cal. R. P. Conduct 3-700(A)(2); El Hage v. U.S. Sec. Assocs., Inc., No. C06-7828 TEH, 2007 WL 4328809, at *1 (N.D. Cal. Dec. 10, 2007).

         The decision to permit counsel to withdraw is within the sound discretion of the trial court. United States v. Carter, 560 F.3d 1107, 1113 (9th Cir. 2009). Courts consider several factors when deciding a motion for withdrawal, 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.” Deal v. Countrywide Home Loans, No. C 09-01643 SBA, 2010 WL 3702459, at *2 (N.D. Cal. Sept. 15, 2010).

         ANALYSIS

         1. Good Cause for Withdrawal

         Good cause exists for Mr. Lacy's withdrawal. Mr. Brown filed this case on September 2, 2016.[5] But, “[s]ince that time, [he] has completely withdrawn his participation in the prosecution of th[e] matter, including responding to necessary discovery.”[6] Indeed, Mr. Brown's lack of communication and participation has “severely hampered” the parties' discovery efforts.[7] It also led Mr. Lacy to suggest modification of the court's scheduling order to “continue efforts to locate [Mr. Brown].”[8] “Despite diligent attempts” and use of “every resource available to [him] in [his] search for Mr. Brown[, ] including contacting his family and friends, ” Mr. Lacy has been unable to contact Mr. Brown.[9] The court has already granted the parties' stipulated extension of the ADR deadline due to Mr. Brown's non-participation, [10] and the parties now ask to vacate all upcoming court deadlines for the same reasons.[11]

         Given Mr. Brown's lack of communication and participation in the case, it is apparent that Mr. Lacy's continued representation would be unreasonably difficult. Mr. Lacy has therefore shown good cause for withdrawal.

         2. Timing and ...


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