United States District Court, E.D. California
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.
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.
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.
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.
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.)
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.)
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).
Motion to Withdraw as Counsel
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.
that delay, no payment was issued. Ms. Alexander contacted
Defendants' counsel again, and was informed that he no
longer represented Defendants' White and Miler.
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
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.
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