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Smith v. Hoffman

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

November 9, 2017

THOMAS E. SMITH, Plaintiff,
BRAD HOFFMAN, et al., Defendants.




         Thomas Moore moves to withdraw as counsel for the plaintiff, Thomas Smith, because Mr. Smith “has failed to respond to any and all . . . communication attempts regarding the upcoming deadlines in this case.”[1] Mr. Moore notified Mr. Smith of his intention to withdraw by email three times between September 26, and October 4, 2017, and emailed his motion to Mr. Smith on October 9, 2017.[2] Mr. Smith did not respond.[3] The court held a hearing on November 9, 2017, at 9:30 a.m. Mr. Smith did not appear. The court grants the motion to withdraw and directs Mr. Moore to continue to accept service of all filings and serve them on Mr. Smith, as discussed below. The court also orders Mr. Smith to appear on November 30, 2017, at 9:30 a.m. to show cause why his case should not be dismissed based on his failure to prosecute it.


         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. 06-CV-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. U.S. 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. 09-CV-01643-SBA, 2010 WL 3702459, at *2 (N.D. Cal. Sept. 15, 2010).


         1. Good Cause for Withdrawal

         Good cause exists for Mr. Moore's withdrawal. Mr. Smith has not participated in this case since he appealed the judgment in a related case.[4] But, since the affirmance by the Ninth Circuit and “[s]ubsequent to the dismissal of Smith v. Harrington . . . [Mr. Moore and his staff] have repeatedly emailed . . . and telephoned [Mr. Smith] to discuss th[is] case, without success.”[5]Further, Mr. Moore requested a continuance of the May 4, 2017, case-management conference for 90 days to allow for Mr. Smith to find new counsel so Mr. Moore could withdraw.[6] Despite “repeated[ ] email[s], ” calls, and use of “services . . . to skip trace [Mr. Smith] on all known points of contact, ” Mr. Moore has not been able to contact Mr. Smith.[7] The court already granted the 90-day continuance that Mr. Moore requested, [8] and issued an order to show cause after Mr. Moore did not appear at the case-management conference.[9] In response to the order to show cause, Mr. Moore stated that he lost communication with Mr. Smith.[10]

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

         2. Timing and Prejudice of Withdrawal

         Mr. Moore has taken adequate measures to prevent reasonably foreseeable harm to Mr. Smith and his withdrawal will not prejudice the defendants.

         First, Mr. Moore has given Mr. Smith enough time and sufficient opportunities to object to the motion. Under Local Rule 11-5(a), Mr. Moore informed Mr. Smith of his intention to withdraw as counsel by voicemail and email.[11] Mr. Moore emailed advance written notice of his intention three times: on September 26, September 29, and October 4.[12] He also served Mr. Smith with the motion on October 9, 2017.[13] Yet Mr. Smith did not respond and did not oppose the motion.

         Second, Mr. Moore's withdrawal will not prejudice the defendants. The court set a hearing for November 9, 2017[14] to allow Mr. Smith time to find new counsel (or appear pro se), if he decides to participate in the litigation. And, in any event, it is his failure to ...

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