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SKAZZI3 Capital Ltd. v. Pathway Genomics Corp.

United States District Court, S.D. California

December 17, 2019

SKAZZI3 CAPITAL LIMITED, Plaintiff,
v.
PATHWAY GENOMICS CORPORATION, Defendant.

          ORDER GRANTING MOTION TO BE RELIEVED AS COUNSEL FOR PATHWAY GENOMICS CORPORATION [DOC. NO. 49]

          HON. ROGER T. BENITZ JUDGE

         Before 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.

         I. BACKGROUND

         Plaintiff 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 payment. Id.

         After 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.

         On 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.)

         Defendant's Counsel now seeks to withdraw as counsel of record, (Doc. No. 49.) Plaintiff Opposed the Motion to which Defendant Replied. (Doc. Nos. 50-51.)

         II. LEGAL STANDARD

         An 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).

         "In 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).

         Courts 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 3-700(A)(2).

         However, 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 ...


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