United States District Court, N.D. California
ORDER DISMISSING PLAINTIFF ENCINIAS FOR FAILURE TO
PROSECUTE AND ORDER GRANTING PLAINTIFFS' COUNSEL'S
MOTION TO WITHDRAW AS ATTORNEY RE: DKT. NOS. 51, 52
HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE
before the Court is Plaintiffs' counsel's motion to
withdraw as attorney for Plaintiff Encinias, Dkt. No. 51, and
Defendant's motion to dismiss Plaintiff Encinias for
failure to prosecute, Dkt. No. 52. For the reasons detailed
below, the Court GRANTS both motions.
MOTION TO WITHDRAW AS ATTORNEY (DKT. NO. 51)
11, 2017, Plaintiff Mary Moore filed this putative class
action in Alameda Superior Court. See Dkt. No. 1 Ex.
A. On March 21, 2019, an amended complaint was filed, which
added Alexandria Encinias as a Plaintiff and Addus HomeCare,
Inc. as a Defendant. See Dkt. No. 1-1 Ex. N
counsel, Tatiana G. Avakian of Marlin & Saltzman, LLP,
first moved to withdraw as Plaintiff Encinias's attorney
on September 23, 2019, citing Plaintiff Encinias's
“fail[ure] to comply with her duties as a class
representative and a break down in the attorney-client
relationship.” Dkt. No. 51 (citing Dkt. No. 48).
Plaintiffs' counsel then withdrew the motion after
Plaintiff Encinias contacted counsel and assured
Plaintiff's counsel of her ability to continue
prosecuting the action. Thereafter, however, Plaintiffs'
counsel renewed her motion to withdraw as Plaintiff
Encinias's attorney on October 29, 2019. Id.
Counsel has made numerous attempts to contact Plaintiff
Encinias over the course of the case. First, in order to
address the written discovery requests, counsel
unsuccessfully attempted to reach Plaintiff Encinias on July
1, 3, 16, and 19, 2019. Dkt. No. 51-1 at ¶ 3. In order
to finalize discovery responses and confirm availability for
a deposition, counsel again unsuccessfully attempted to reach
Plaintiff Encinias on July 26, 29, 30, 31, 2019 and August 2,
2019. Id. at ¶ 4. Co-counsel Lawyers for
Justice, PC also unsuccessfully attempted to reach Plaintiff
Encinias on August 14 and 29, 2019. Id. at ¶ 5.
Counsel even hired an investigator to produce additional
contact information, yet the additional contacts still proved
unsuccessful. Id. at ¶ 6. After a final attempt
on September 16, 2019, counsel filed the initial motion to
withdraw as counsel. Id. at ¶¶ 7-8.
Thereafter, counsel again tried to contact Plaintiff Encinias
on October 7, 8, 10, and 14, 2019. Id. at ¶ 13.
Although counsel heard from Plaintiff Encinias on October 15,
2019, Plaintiff Encinias did not confirm attendance for the
October 22 deposition and thereafter again failed to respond
to counsel. Id. at ¶¶ 14-15. Counsel then
renewed her motion to withdraw as counsel for Plaintiff
Encinias arguing that Plaintiff Encinias's “failure
to communicate . . . has created a conflict between
Plaintiff[s'] Counsel's duty to Ms. Encinias and
[the] duty to the remaining class representative, Mary Moore,
as well as putative class members.” Id. at
¶ 17. The Court set a hearing on this motion for January
9, 2019, and directed counsel to inform Plaintiff Encinias
that she should appear at the hearing if she opposed
counsel's motion to withdraw. Dkt. No. 60. Counsel
confirmed at the hearing that she emailed Ms. Encinias this
information. Because Plaintiff Encinias did not appear at the
hearing, it is unclear to the Court whether she opposes the
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. at 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.
Plaintiff's counsel filed the instant motion over two
months ago and gave Plaintiff Encinias advance notice of
withdrawal weeks before by filing the previous withdrawal
motion. See Dkt. No. 48. Based upon the discussion
at the hearing, the Court is persuaded that Plaintiff's
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-TEH, 2008 WL 160964, at
*1 (N.D. Cal. Jan. 8, 2008). The Court
GRANTS the motion to withdraw as counsel.
TO DISMISS FOR FAILURE TO PROSECUTE (DKT. NO. 52)
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).
“Despite this authority, dismissal is a harsh penalty
and, therefore, it should only be imposed in extreme
circumstances.” Ferdik v. Bonzelet, 963 F.3d
1258, 1260 (9th Cir. 1992) (citations omitted); see
also Fed. R. Civ. P. 41(b) (stating that dismissal for
failure to prosecute “operates as an adjudication on
the merits” unless the order says otherwise). Courts
“must weigh five factors” in determining whether
to dismiss a case for failure to prosecute: “(1) the
public's interest in expeditious resolution of
litigation; (2) the court's need to manage its docket;
(3) the risk of prejudice to the defendants; (4) the public
policy favoring disposition of cases on their merits; and (5)
the availability of less drastic alternatives.” See
Ferdik, 963 F.3d at 1260-61. A court need not make
“explicit findings in order to show that it has
considered these factors, ” although such findings are
preferred. Id. at 1261. Here, the Court considers
each factor in turn, and finds that they weigh in favor of
“[t]he public's interest in expeditious resolution
of litigation always favors dismissal.” Pagtalunan
v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (quoting
Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th
Cir. 1999)). That is true here. Plaintiff repeatedly failed
to respond to counsel's communications over the course of
four months, starting in July 2019 and continuing through at
least January 9, 2020, when the hearing for both this motion
and Plaintiffs' counsel's motion to withdraw took
place. See Dkt. No. 51-1 at ¶¶ 3-15.
Further, Plaintiff failed to appear at the hearing even after
the Court's January 2, 2020 order to appear if she
opposed Plaintiffs' counsel's motion to withdraw.
See Dkt. No. 60. The Court is satisfied that
Plaintiff's lack of responsiveness contravenes the
“public's interest in expeditious resolution of
litigation.” See Pagtalunan, 291 F.3d at 642.
This factor therefore weighs in favor of dismissal.
it is “incumbent” upon courts “to manage
[their] docket[s] without being subject to routine
noncompliance” of litigants. See Id. (citing
Ferdik, 963 F.2d at 1261). Moreover, “[t]he
trial judge is in the best position to determine whether the
delay in a particular case interferes with docket management
and the public interest.” Id. Here, Plaintiff
failed to attend the hearing on the motion to withdraw in
person, as ordered by the Court on January 2, 2020,
see Dkt. No. 60. Counsel represented to the Court
that she communicated the Court's order directing
Plaintiff Encinias to appear, but she has not received any
response or communications from Plaintiff Encinias since
October 15, 2019. Plaintiff Encinias's noncompliance and
the resulting litigation (e.g., the motions to
withdraw and motion to dismiss) “ha[ve] consumed some
of the court's time that could have been devoted to other
cases on the docket.” See Pagtalunan, 291 F.3d
at 642. This factor therefore weighs in favor of dismissal.
in order to prove prejudice, “a defendant must
establish that plaintiff's actions impaired
defendant's ability to proceed to trial or threatened to
interfere with the rightful decision of the case.”
Pagtalunan, 291 F.3d at 642. “Whether
prejudice is sufficient to support an order of dismissal is
in part judged with reference to the strength of the
plaintiff's excuse for the default.” Malone v.
U.S. Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987)
(citation omitted). Defendant argues that Plaintiff
Encinias's inaction has prejudiced its ability to conduct
discovery and prepare their case. Dkt. No. 52. The Court
agrees that Defendant has been prejudiced by an inability to
properly conduct discovery. See Jones v. Lehigh Sw.
Cement Co., No. 1:12-CV-00633-AWI-JL, 2014 WL 346619, at
*8 (E.D. Cal. Jan. 30, 2014) (“[T]he inability to
obtain a plaintiff's deposition significantly impairs the
[defendant's] ability to explore, defend, and challenge
the claims against it.”) (citation omitted); Rau v.
Mission Ranch Primary Care, No. 2:13-CV-00371-KJM, 2014
WL 1490957, at *3 (E.D. Cal. Apr. 15, 2014) (finding
prejudice where “defendants have been unable to move
forward or to conduct any discovery in light of
plaintiff's counsel's ...