United States District Court, S.D. California
ORDER GRANTING MOTION TO BE RELIEVED AS COUNSEL FOR
PATHWAY GENOMICS CORPORATION [DOC. NO. 49]
ROGER T. BENITZ JUDGE
the Court is a Motion to Withdraw as Counsel for Pathway
Genomics Corporation ("Defendant") filed by Miller
Miller Gerber LLP ("Defendant's counsel"). The
Court finds this matter appropriate for resolution without a
hearing. See Fed. R. Civ. P. 78. After reviewing all
related filings, the Court grants the Motion.
originally brought this action to enforce an arbitral award
obtained against Defendant in Europe. (Doc. No. 15 at 1.)
After the suit was filed, Defendant sought to resolve the
case without judicial intervention. The party's
negotiations resulted in a good faith Settlement Agreement
requiring Defendant to pay $482, 913.00 by way of twelve (12)
equal monthly installments of $40, 242.75. Id. To
secure the Plaintiffs interest, a Stipulated Judgment was
executed calling for entry of the judgment in the event the
Defendant failed to cure any missed payment within seven days
of its scheduled due date. Id. at 1-2. Defendant
defaulted and failed to cure on its second settlement
numerous unsuccessful attempts to resolve Defendant's
default, Plaintiff sought entry of judgment in the amount of
$482, 91.300, less $40, 242.75 (amount paid), for a total of
$442, 670.25. Id.
October 25, Plaintiff filed a Motion for Clerks Judgment re
Assignment Order and Restraining Order against Defendant.
(Doc. No. 51.) Thereafter, Plaintiff filed a Notice of
Non-Opposition when Defendant did not respond. (Doc. No. 54.)
Counsel now seeks to withdraw as counsel of record, (Doc. No.
49.) Plaintiff Opposed the Motion to which Defendant Replied.
(Doc. Nos. 50-51.)
attorney may not withdraw as counsel except by leave of
court. Kassab v. San Diego Police Dep % 2008 WL
251935, at * 1 (S.D. Cal. Jan 29, 2008); see also Beard
v. Shuttermart of Cal, Inc., 2008 WL 410694, at *2 (S.D.
Cal. Fed. 13, 2008). Additionally, under local rules, an
attorney must serve notice of its motion to withdraw on the
adverse party as well as on the moving party's client
with a declaration of service. Local Civ. R. 83.3(g)(3).
ruling on a motion to withdraw as counsel, courts consider:
(1) the reasons why withdrawal is sought; (2) the prejudice
withdrawal may cause to other litigants; (3) the harm
withdrawal might cause to the administration of justice; (4)
the degree to which withdrawal will delay the resolution of
the case." Garrett v. Ruiz, 2013 WL 163420
(S.D. Cal. Jan. 14, 2013).
have previously held that "[f]ailure to pay
attorney's fees can be valid ground for withdrawal."
Leatt Corp. v. Innovative Safety Tech., LLC, 2010 WL
444708, at *2 (S.D. Cal. Feb. 2, 2019); see also
Canadaigua Wine Company, Inc. v. Edwin Moldauer, 2009 WL
89141 (E.D. Cal. Jan 14, 2009) (granting motion to withdraw
legal counsel where defendant refused to accept legal advice
or pay his fees.) Furthermore, there is no danger of
prejudice where a hearing date is not immediately set or
where litigation is at a relatively nascent stage. Gurvey
v. Legend Films, Inc., 2010 WL 2756944 (S.D. Cal. July
12, 2010). There is also no undue delay where the counsel
takes "reasonable steps to avoid reasonably foreseeable
prejudice to the rights of the client, "including giving
due notice to the clint [and] allowing time for employment of
other counsel ..." Cal. Rule of Prof. Conduct
according to local rules,
Only natural persons representing their individual interests
in propria persona may appear in court without
representation ... All other parties, including corporations,
partnerships and other legal entities, may appear in court
only through an attorney permitted to practice...
Local Civ. R. 83.3(k); see also Laskowitz v.
Shellenberger,107 F.Supp. 397, 398 (S.D. Cal. 1952)
("Since a corporation cannot practice law, and can only
act through the agency of natural persons, it follows that it
can appear in court on its ...