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Monclova-Chavez v. McEachern

United States District Court, E.D. California

May 4, 2018

MAXIMILLIAN MONCLOVA-CHAVEZ, Plaintiff,
v.
McEACHERN, et al., Defendants.

          ORDER GRANTING MOTION TO WITHDRAW AS PLAINTIFF'S ATTORNEY (ECF No. 193) ORDER GRANTING PLAINTIFF'S MOTION FOR WRIT OF EXECUTION (ECF No. 191)

          BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE.

         I. Background

         Plaintiff Maximilian Monclova-Chavez (“Plaintiff”) is a federal prisoner who proceeded with counsel and in forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). This action proceeded against Defendants Miller, White, McEachern, and Tincher.

         On July 30, 2013, following a stipulation of Plaintiff and Defendants White and Miller, judgment was entered in the amount of $10, 000, inclusive of costs and fees, in favor of Plaintiff and against Defendants White and Miller, jointly and severally, without an admission of liability. (ECF Nos. 168, 169.) On August 28, 2013, pursuant to a further stipulation of Plaintiff and Defendant Tincher, Defendant Tincher was dismissed, with prejudice. (ECF Nos. 171, 172.) Thereafter, only Defendant McEachern remained in this action.

         Defendant McEachern was served with the summons and complaint on August 13, 2009. (ECF No. 27.) Defendant did not file an answer. The Clerk's Office entered default on August 23, 2010, as per Plaintiff's request. (ECF Nos. 55-56.) Plaintiff filed a motion for default judgment and, in response to the Court's order, supplemental briefing regarding the amount of damages. (ECF Nos. 182, 184, 185.) Despite being served with the motion for default judgment and supplemental briefing, Defendant McEachern did not file a motion to set aside the default or respond to the motion.

         Accordingly, the Court issued findings and recommendations recommending that Plaintiff's motion for default judgment in favor of Plaintiff and against Defendant McEachern be granted in part. (ECF No. 186.) The assigned district judge adopted the findings and recommendations on February 3, 2015, and entered judgment in favor of Plaintiff and against Defendant McEachern. (ECF No. 187.) Damages were awarded in the total amount of $12, 000.00, including compensatory damages in the amount of $7, 000.00 and punitive damages in the amount of $5, 000.00. (Id.)

         Following entry of judgment, Plaintiff filed, pro se, two notices regarding the judgment on January 23, 2017. (ECF Nos. 189, 190.) As it was unclear whether Plaintiff remained represented by counsel at the time, the notices went unanswered by the Court. On February 2, 2018, Plaintiff filed, pro se, a motion for writ of execution. (ECF No. 191.) Finding that Plaintiff's filings raised a question regarding his continued representation, on March 8, 2018, the Court directed Plaintiff's attorneys of record to file a response to Plaintiff's motion. (ECF No. 192.)

         Currently before the Court is the response by Elizabeth Alexander filed on March 27, 2018, together with a motion for leave to withdraw as counsel. (ECF Nos. 193, 194.) No responses or opposition have been filed, and the motion is deemed submitted. Local Rule 230(1).

         II. Motion to Withdraw as Counsel

         In her response, Ms. Alexander confirms that, following the entry of judgment in this case, she contacted counsel for Defendants White and Miller regarding arrangements for payment of the judgment. At the request of Defendants' counsel, the parties agreed to a brief delay.

         Following that delay, no payment was issued. Ms. Alexander contacted Defendants' counsel again, and was informed that he no longer represented Defendants' White and Miler.

         Ms. Alexander made various attempts to locate the three Defendants for over a year. Though she considered hiring a private investigator, Ms. Alexander ultimately determined that the possibility of identifying a private investigator who would locate the Defendants, and that the Defendants would have assets subject to a writ of execution was too low to justify the expenditure. Ms. Alexander continued her efforts to recover the judgment, including attempting to sell the judgment, at Plaintiff's request. She was unsuccessful.

         While Ms. Alexander continued to represent Plaintiff informally in other matters, Plaintiff continued to request that she hire a private investigator, and she declined. As a result, Ms. Alexander and Plaintiff agreed to her discharge as his counsel. Plaintiff's pro se filings essentially confirm these events. (See ECF No. 189.) Ms. Alexander states that she did not realize that she should have filed a withdrawal of her appearance in this post-judgment case, and has included a motion for leave to withdraw as Plaintiff's counsel with her response.

         Eastern District of California Local Rule 182(d) provides that an attorney who has appeared on behalf of a client may not withdraw, leaving the client in propria persona, without leave of court. The rule further states that “[w]ithdrawal of an attorney is governed by the Rules of Professional Conduct of the State Bar of California” (“California Rules of Professional Conduct”). The California Rules of Professional Conduct are interpreted ...


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