United States District Court, N.D. California, San Francisco Division
THOMAS E. SMITH, Plaintiff,
BRAD HOFFMAN, et al., Defendants.
ORDER GRANTING MOTION TO WITHDRAW RE: ECF NO.
BEELER, UNITED STATES MAGISTRATE JUDGE.
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.” 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. Mr. Smith did not
respond. 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.
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).
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,
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,
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).
Good Cause for Withdrawal
cause exists for Mr. Moore's withdrawal. Mr. Smith has
not participated in this case since he appealed the judgment
in a related case. 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.”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. 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. The court already granted the 90-day
continuance that Mr. Moore requested,  and issued an
order to show cause after Mr. Moore did not appear at the
case-management conference. In response to the order to show
cause, Mr. Moore stated that he lost communication with Mr.
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.
Timing and Prejudice of Withdrawal
Moore has taken adequate measures to prevent reasonably
foreseeable harm to Mr. Smith and his withdrawal will not
prejudice the defendants.
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. Mr. Moore
emailed advance written notice of his intention three times:
on September 26, September 29, and October 4. He also
served Mr. Smith with the motion on October 9,
2017. Yet Mr. Smith did not respond and did
not oppose the motion.
Mr. Moore's withdrawal will not prejudice the defendants.
The court set a hearing for November 9, 2017 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 ...