United States District Court, C.D. California
Present: Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGE
CIVIL MINUTES-GENERAL
Proceedings:
IN CHAMBERS -- ORDER RE MOTION FOR LEAVE TO WITHDRAW AS
COUNSEL FOR DEFENDANT / COUNTER-PLAINTIFF AND ORDER TO SHOW
CAUSE WHY GOOD CAUSE EXISTS TO MODIFY SCHEDULING ORDER AND
WHY THIRD PARTY COMPLAINT SHOULD NOT BE DISMISSED FOR LACK OF
PROSECUTION [69]
I.
MOTION TO WITHDRAW AS COUNSEL
On
January 10, 2020, Mikhael Bortz, of Bortz Law Firm, P.A.,
admitted pro hac vice, filed a motion for leave to
withdraw as counsel for Defendant / Counterclaimant Daniel
Fuentes on the ground that health issues have impaired her
ability to provide Defendant with adequate representation.
[Doc. # 69.]
“A
motion for leave to withdraw must be made upon written notice
given reasonably in advance to the client and to all other
parties who have appeared in the action.” Local Rule
83-2.3.2.
According
to Ms. Bortz's motion and supporting declaration, she has
given notice to Defendant and all other parties that have
appeared in the case and Defendant does not object to her
proposed withdrawal. [Doc. # 69, at ¶¶ 6, 7.] On
January 13, 2020, Plaintiff Lauren Moshi, LLC, filed a
response stating that it did not object to Ms. Bortz's
withdrawal. [Doc. # 70, at p. 2.] In addition to Ms. Bortz,
Defendant has also been represented by local counsel, Ryan W.
Powers, since July 2, 2019. [Doc. # 37.] The Court has
received no indication that Mr. Powers will not be
representing Defendant moving forward.
Ms.
Bortz is ordered to serve Defendant with a copy of this
Order. No later than January 23, 2020,
defense counsel shall file a proof of service indicating
service of this Order on Defendant.
II.
REQUEST TO MODIFY SCHEDULING ORDER AND TO EXTEND TIME TO
SERVE COUNTERCLAIM
In her
motion, Counsel also requests that the Court: (1) continue
all dates, including the motion and discovery cutoff dates
and the trial date, for sixty (60) days so that new counsel
may be retained and have sufficient time to become
familiarized with this matter; and (2) grant a sixty (60) day
extension so that Defendant may belatedly serve his
Counterclaim on Third Party Defendants Michael and Lauren
Moshi (mischaracterized as Counter-Defendants).
At this
time, it is unclear why additional time is needed given that
Ms. Bortz's co-counsel, Mr. Powers, remains counsel of
record. Accordingly, no later than January 31, 2020,
Defendant is ORDERED TO SHOW CAUSE why: (1) good cause exists
to modify the Scheduling Order, and (2) the Third Party
Complaint against Michael and Lauren Moshi should not be
dismissed for lack of prosecution. Fed.R.Civ.P. 41(b);
see Hells Canyon Preservation Council v. U.S. Forest
Service, 403 F.3d 683, 689 (9th Cir. 2005)
(“[W]hereas the plain language of Rule 41(b) suggests
that such dismissals may only result from a defendant's
motion . . ., the consensus among our sister circuits, with
which we agree, is that courts may dismiss under Rule 41(b)
sua sponte, at least under certain
circumstances.”).[1] The February 14, 2020 hearing is
VACATED.
IT
IS SO ORDERED.
---------
Notes:
[1] In Defendant's request to extend
time to serve the Third Party Complaint, Counsel attached
evidence suggesting that Third Party Defendants Michael and
Lauren Moshi have either refused delivery of waiver paperwork
or have otherwise been unreachable. [Doc. ## 69-1, 69-2.]
Counsel appears to have attempted to send these documents,
however, on December 4, 2019, after the deadline to serve the
Third Party Complaint had already passed on November 21,
2019. See id.; see Fed. R. Civ. P. 4(m).
Accordingly, in the OSC response, Defendant shall explain
why, applying the appropriate standard, the Third Party
Complaint should not be dismissed for failure to prosecute,
particularly given the existence of co-counsel who could have
timely attempted service or timely moved the Court for
alternate service options. The primary factor in the
“good cause” inquiry is the moving party's
reasonable diligence. Noyes v. Kelly Servs., 488
F.3d 1163, 1174 n.6 (9th Cir. 2007); see also Zivkovic v.
S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002)
(“The pretrial schedule may be modified if it cannot
reasonably be met despite the diligence of the party seeking
...