United States District Court, N.D. California
ORDER DISMISSING THE CASE FOR FAILURE TO PROSECUTE
AND ORDER GRANTING PLAINTIFF COUNSEL'S MOTION TO WITHDRAW
AS ATTORNEY RE: DKT. NO. 33
HAYWOOD S. GILLIAM, JR. United States District Judge
FAILURE TO PROSECUTE
Tatsiana DeRosa, Tamara Tyler, Gilberto Lopez, and Bonnie
Wheeler filed this action in California Superior Court on
April 24, 2019. Dkt. No. 1. Defendants removed the action on
May 28, 2019, on the basis of diversity. Id. On
October 24, 2019, Plaintiffs DeRosa, Tyler, and Wheeler
dismissed all their claims against Defendants with prejudice.
Dkt. No. 34. Only Plaintiff Lopez remains.
counsel, Levi M. Plesset of Milstein Jackson Fairchild &
Wade, LLP, moved to withdraw as Plaintiff Lopez's
attorney on October 23, 2019. Dkt. No. 33. Counsel first
notified Plaintiff Lopez of his intent to withdraw on October
2, 2019, and again on October 16, 2019. Id. The
Court set a hearing on this motion for December 5, 2019, and
directed counsel to inform Plaintiff Lopez that he should
appear at the hearing if he opposed counsel's motion to
withdraw. Dkt. No. 38. Plaintiff Lopez did not appear at the
hearing. Counsel represented to the Court that he served the
Court's order directing Plaintiff Lopez to appear, but he
has not received any response or communications from
Plaintiff. The Court has no way of verifying whether
Plaintiff Lopez intends to continue prosecuting this case, as
there has been no communication from Mr. Lopez either to his
counsel or the Court in at least two months (if not longer).
Rule of Civil Procedure 41(b) provides that where a
“plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss the
action or any claim against it.” Fed.R.Civ.P. 41(b).
The Court may also sua sponte dismiss a case for lack of
prosecution. Link v. Wabash R. Co., 370 U.S. 626,
630-31 (1962). The Court finds that Plaintiff Lopez has
demonstrated that he is unable or unwilling to adequately
prosecute this case. Accordingly, the Court
DISMISSES this action as to Plaintiff Lopez
WITHOUT PREJUDICE under Rule 41(b) for
failure to prosecute.
MOTION TO WITHDRAW AS ATTORNEY (DKT. NO. 33)
Court next addresses counsel's motion to withdraw as
attorney for Plaintiff Lopez. Dkt. No. 33. Counsel represents
that he has “repeatedly called and sent correspondence
to communicate with Plaintiff, ” but Plaintiff Lopez
has “shut down any meaningful attorney-client
interaction.” Id. Counsel notified Plaintiff
on two occasions of his intention to withdraw. Id.
At the December 5, 2019 hearing, counsel represented that he
has not received a response from Plaintiff Lopez. Because
Plaintiff Lopez did not appear at the hearing, it is unclear
to the Court whether Plaintiff Lopez opposes the motion.
district, “[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.” Civil
L.R. 11-5(a). Moreover, “[w]hen withdrawal by an
attorney from an action is not accompanied by simultaneous
appearance of substitute counsel or agreement of the party to
appear pro se, leave to withdraw may be subject to the
condition that papers may continue to be served on counsel
for forwarding purposes, unless and until the client appears
by other counsel or pro se.” Civil L.R. 11-5(b).
is also governed by the California Rules of Professional
Conduct. See j2 Glob. Commc'ns, Inc. v. Blue Jay,
Inc., No. C 08-4254PJH, 2009 WL 464768, at *1 (N.D. Cal.
Feb. 24, 2009)). Under these rules, permissive withdrawal may
be granted only by leave of the Court. CA ST RPC, Rule
3-700(A)(1). The rules provide for permissive withdrawal on
various grounds. Id., Rule 3-700(C)(1). But an
attorney may not withdraw before he or she “has taken
reasonable steps to avoid reasonably foreseeable prejudice to
the rights of the client, including giving due notice to the
client, allowing time for employment of other counsel,
complying with rule 3-700(D), and complying with applicable
laws and rules.” Id., Rule 3-700(A)(2);
see also id, Rule 3-700(D) (regarding the refund of
fees and the release of property and papers).
broadly, courts assessing a motion to withdraw engage in a
balancing of the equities, considering such factors as why
counsel seeks to withdraw and whether permitting withdrawal
may prejudice other litigants, harm the administration of
justice, or delay the case's resolution. See Robinson
v. Delgado, No. CV 02-1538 NJV, 2010 WL 3259384, at *2
(N.D. Cal. Aug. 18, 2010) (citing cases).
Court finds that Civil Local Rule 11-5(a) is satisfied here.
Plaintiffs counsel filed the motion almost two months ago and
gave Plaintiff Lopez advance notice of withdrawal weeks
before the filing of the motion. See Dkt. No. 33.
Based upon the discussion at the hearing, the Court is
persuaded that Plaintiffs counsel filed the motion with a
good faith belief that there is good cause for withdrawal.
See CA ST RPC, Rule 3-700(C)(6). Accordingly, the
Court finds in the exercise of its discretion that withdrawal
is warranted. See Gong v. City of Alameda, No. C
03-05495 THE, 2008 WL 160964, at *1 (N.D. Cal. Jan. 8, 2008).
The Court GRANTS the motion to withdraw as
Court GRANTS Plaintiff counsel's motion
to withdraw as attorney. See Dkt. No. 33. Further,
the Court DISMISSES this action
WITHOUT PREJUDICE with respect to Plaintiff
Lopez for failure to prosecute under Rule 41(b). The Clerk
shall close the file. Plaintiff Lopez's former counsel is
directed to forward this order to him.