United States District Court, E.D. California
ORDER GRANTING COUNSELS' MOTION TO WITHDRAW AS
ATTORNEY OF RECORD (Doc. 6)
Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE
Dingwall and C. Kiel Garella seek to withdraw as attorneys of
record for Plaintiff Kevin Barnes. (Doc. 6) Plaintiff did not
file a written opposition to the motion. Defendant Union
Pacific Railroad Company filed a statement of non-opposition.
Court found the matter suitable for decision without oral
argument, and took the matter under submission pursuant to
Local Rule 23(g). For the reasons set forth below, the motion
to withdraw is GRANTED.
initiated this action by filing a complaint on July 27, 2017,
seeking to “recover damages for injuries and for other
relief under the Federal Employers Liability Act, 45 U.S.C.
§ 51.” (Doc. 1 at 2) Plaintiff filed a proof of
service indicating Union Pacific Railroad Company had been
served with the complaint on October 26, 2017. (Doc. 5) The
same date, counsel filed the motion to withdraw now pending
before the Court. (Doc. 6)
filed its answer to the Complaint as well as a statement of
non-opposition to the motion to withdraw on November 14,
2014. (Docs. 10, 12)
of counsel is governed by the Rules of Professional Conduct
of the State Bar of California, and the Local Rules of the
United States District Court, Eastern District of California.
See LR 182. The withdrawal of representation is
permitted under the Rules of Professional Conduct if a client
“renders it unreasonably difficult for the member to
carry our employment effectively.” Cal. R.P.C.
3-700(C)(1)(d). Local Rule 182(d) provides:
Unless otherwise provided herein, an attorney who has
appeared may not withdraw leaving the client in propria
persona without leave of court upon noticed motion and notice
to the client and all other parties who have appeared. The
attorney shall provide an affidavit stating the current or
last known address or addresses of the client and the efforts
made to notify the client of the motion to withdraw.
Id. Likewise, California's Rules require the
notice of motion and declaration to be served on the client
and other parties who have appeared in the case. CRC
decision to grant withdrawal is within the discretion of the
Court, and leave “may be granted subject to such
appropriate conditions as the Court deems fit.” LR
182; see also Canandaigua Wine Co., Inc. v.
Moldauer, 2009 WL 989141, at *1 (E.D. Cal. Jan. 14,
2009) (“The decision to grant or deny counsel's
motion to withdraw is committed to the discretion of the
trial court.”). The Court may consider: (1) the reasons
for withdrawal, (2) prejudice that may be caused to the other
litigants, (3) harm caused to the administration of justice;
and (4) delay to the resolution of the case caused by
withdrawal. Id., 2009 WL 989141, at *1-2. In
addition, permissive withdrawal of an attorney is allowed if
a client “knowingly and freely assents to termination
of the employment.” Cal. R.P.C. 3-700(C)(5); see
also Ortiz v. Alvarez, 2017 U.S. Dist. LEXIS 84252 at *2
(E.D. Cal. May 31, 2017).
Discussion and Analysis
Dingwall asserts that he and C. Kiel Garella seek to withdraw
as counsel for Plaintiff. (Doc. 6 at 2) Mr. Dingwall reports
that he “informed Mr. Barnes via phone and email of the
intent … to withdraw as counsel on behalf of Mr.
Barnes in this matter.” (Doc. 6-1 at 1, Dingwall Decl.
¶3) In addition, he asserts that Plaintiff was
“provided with opportunity to obtain new
counsel.” (Id., ¶ 4) According to Mr.
Dingwall, Plaintiff “knowingly and freely assents to
the termination of the employment of [Mr. Dingwall] and Mr.
Garella.” (Id., ¶ 5) Thus, it appears
that counsel seeks to withdraw from the case pursuant to Rule
3-700(C)(5) of the California Rules of Professional Conduct,
which provides that an attorney may seek withdrawal where
“[t]he client knowingly and freely assents to the
termination of the employment.” Indeed, although
informed of the filing of the motion, Plaintiff did not
oppose the withdrawal of representation.
the defendant does not oppose the motion (Doc. 12), and it
does not appear the defendant would suffer any prejudice by
the withdrawal of counsel. Further, there would be any harm
to the administration of justice. Finally, the withdrawal is
unlikely to cause unreasonable delay to the litigation
because this case has not yet been scheduled and no trial has
been set. Accordingly, the factors set forth in