Desai v. The Lincoln National Life Insurance Company

Opinion

1 2 3

4 5 6 7 9 EASTERN DISTRICT OF CALIFORNIA 10

11 PRAVIN O. DESAI, Case No. 1:20-cv-00058-LHR-CDB

12 Plaintiff, ORDER VACATING ORDER GRANTING ATTORNEY RYAN C. WRIGHT’S MOTION TO 13 v. WITHDRAW AS COUNSEL FOR PLAINTIFF

14 THE LINCOLN NATIONAL LIFE (Doc. 78) INSURANCE COMPANY, et al. 15 AMENDED ORDER GRANTING ATTORNEY Defendants. RYAN C. WRIGHT’S MOTION TO WITHDRAW

17 (Doc. 75)

18 ORDER TO SHOW CAUSE WHY PLAINTIFF SHOULD NOT BE SANCTIONED FOR FAILURE 19 TO COMPLY WITH COURT ORDERS

20 (Doc. 78)

21 22 10-DAY DEADLINE 23 24 25 On January 22, 2024, the Court granted the motion of attorney Ryan C. Wright to withdraw as 26 counsel for Plaintiff Pravin O. Desai (“Plaintiff”). (Doc. 78). On January 24, 2024 – two days after 27 the Court granted counsel Wright’s motion to withdraw – the Clerk of the Court docketed a “Notice” 28 filed by Plaintiff that responds to counsel Wright’s motion to withdraw and which Plaintiff attests to 1 having served on January 17, 2024 (i.e., prior to the Court’s order granting the motion). (Doc. 79). In 2 that “Notice,” Plaintiff requests that the Court not permit counsel Wright to withdraw without his 3 conclusion of the case. Id. at 2. Given Plaintiff’s apparent opposition to the withdrawal of counsel 4 Wright, the Court will vacate its earlier order granting counsel Wright’s motion to withdraw, address 5 Plaintiff’s objections below, and enter an amended order granting the motion. 6 Separately, in its earlier order permitting counsel Wright to withdraw as counsel of record in 7 this action, the Court directed Plaintiff to inform the Court within 14 days whether he intends to 8 continue prosecuting this action and, if so, whether he intends to obtain new counsel or represent 9 himself. Id. at 5. The Court admonished Plaintiff: “Any failure by Plaintiff to respond to the court’s 10 order in this regard will result in the dismissal of this action for failure to prosecute and failure to 11 comply with the court’s order.” Id. More than 14 days have passed since service of the Court’s order 12 on Plaintiff and Plaintiff has failed to comply with the order or make any other filing setting forth 13 good cause for his delinquency. Accordingly, for the reasons set forth below, the Court will order 14 Plaintiff to show cause why this action should not be dismissed for his failure to comply with Court 15 orders and failure to prosecute. 16 Procedural Posture 17 On November 25, 2019, Plaintiff, through counsel Jesse James Thaler, filed this action in the 18 Kern County Superior Court against Defendants The Lincoln National Life Insurance Co., Lincoln 19 Life & Annuity Co. of New York, and First Penn-Pacific Life Insurance Co. (“Defendants”). (Doc. 1- 20 1 at 5). On July 14, 2020, counsel Jesse James Thaler filed a motion to withdraw as counsel. (Doc. 21 15). Counsel Thaler also filed a declaration in support of his motion that the Court ordered sealed. 22 (Docs. 17-18). 23 On August 24, 2020, the Court granted counsel Thaler’s motion to withdraw as counsel for 24 Plaintiff. (Doc. 20). The Court directed Plaintiff to inform the Court whether he intended to continue 25 prosecuting this action and, if so, whether he intended to obtain new counsel or represent himself. Id. 26 at 5. The docket indicates Plaintiff did not timely respond to the Court’s order. 27 On March 31, 2021, Plaintiff, who continued to represent himself pro se since the withdrawal 28 of counsel Thayer, filed a motion for summary judgment. (Doc. 32). Defendants filed a motion for 1 summary judgment on April 2, 2021. (Doc. 33). On April 12, 2021, Defendants filed an opposition to 2 Plaintiff’s motion for summary judgment. (Doc. 35). Plaintiff did not respond to Defendant’s motion 3 for summary judgment. See (Doc. 36). 4 On April 30, 2021, Ryan C. Wright filed a notice of appearance of counsel with this Court as 5 Plaintiff’s new counsel of record. (Doc. 37). While the motions were under submission before the 6 then-assigned district judge, on April 28, 2022, the Court issued an order noting that there were 7 deficiencies and omissions in the parties’ briefing for the cross-motions for summary judgment and 8 directed the parties to submit a joint status report regarding a briefing schedule. (Doc. 53). On May 9 11, 2022, the parties filed a joint status report providing a briefing schedule to the Court. (Doc. 54). 10 The Court issued a briefing schedule on the parties’ cross motions for summary judgment on May 12, 11 2022. (Doc. 55). 12 On June 24, 2022, Plaintiff (through counsel Wright) filed an amended motion for summary 13 judgment. (Doc. 56). On July 15, 2022, Plaintiff filed an opposition to Defendants’ April 2, 2021, 14 motion for summary judgment. (Doc. 60). That same day, Defendants filed an opposition to 15 Plaintiff’s amended motion for summary judgment. (Doc. 64). On August 5, 2022, the parties filed 16 replies to the oppositions. (Docs. 65-66). Both motions for summary judgment are pending before the 17 Court.1 18 Counsel Wright’s Motion to Withdraw and Plaintiff’s Opposition 19 Counsel Wright filed a motion to withdraw as counsel of record for Plaintiff on December 13, 20 2023 (Doc. 75), which he supplemented at the Court’s direction with an additional declaration on 21 January 18, 2024. (Docs. 76, 77). On December 8, 2023 – more than five weeks prior to the Court’s 22 order relieving counsel Wright as attorney of record in this action – counsel Wright provided Plaintiff 23 via email with notice of his motion to withdraw, as well as information on upcoming deadlines, 24 conferences, and other events. (Doc. 77 ¶ 7). Notwithstanding counsel Wright’s notice to Plaintiff of 25 the motion to withdraw, Plaintiff made no filings responding to counsel Wright’s motion prior to the 26 Court’s grant of the motion. 27

28 1 On February 1, 2024, this action was reassigned to Chief District Judge Lee H. Rosenthal (S.D. Tex.). (See Docket entry dated 2/1/2024). 1 As set forth more fully in the Court’s January 22 order granting his motion to withdraw (Doc. 2 78), the Court credited counsel Wright’s undisputed representations that, beginning in or about 3 November 2022, through the present, “Plaintiff has exhibited conduct that has rendered representation 4 unreasonably difficult, which has resulted in a breakdown of the attorney-client relationship.” (Doc. 5 75-2 at 2). The Court further credited counsel Wright’s representations that since March 2023, he 6 attempted to meet and confer with Plaintiff regarding the breakdown in the attorney-client relationship 7 via email and phone. Id. Counsel Wright “specifically identified the unreasonable conduct and 8 provided Plaintiff an opportunity to cure” but the breakdown was irremediable. Id. The Court found 9 counsel Wright took reasonable steps to avoid reasonably foreseeable prejudice to Plaintiff in ensuring 10 Plaintiff had sufficient notice to obtain other counsel prior to any substantive court deadlines or 11 hearings. (Doc. 75 at 3). Counsel Wright also prepared a pretrial statement for Plaintiff to submit and 12 informed him of the deadline to file said statement, as well as informing Plaintiff of all upcoming 13 deadlines and important dates. Id. Based on these undisputed representations, the Court found 14 counsel Wright provided good cause to withdraw under the California Rules of Professional Conduct 15 as it appears a breakdown in the attorney-client relationship has occurred despite counsel Wright’s 16 attempts over an extended period of time (between March 2023 and the present) to engage with 17 Plaintiff. (Doc. 78 at 4). 18 On January 24, 2024 – two days after the Court granted counsel Wright’s motion to 19 withdraw – the Clerk of the Court docketed a “Notice” filed by Plaintiff that responds to counsel 20 Wright’s motion to withdraw and which Plaintiff attests to having served on January 17, 2024 (i.e., 21 prior to the Court’s order granting the motion). (Doc. 79). In that “Notice,” Plaintiff requests that the 22 Court not permit counsel Wright to withdraw without his conclusion of the case. Id. at 2. Plaintiff 23 otherwise does not respond to counsel Wright’s representations concerning the breakdown in his 24 relationship with Plaintiff. 25 Legal Standard 26 The decision to grant or deny an attorney’s motion to withdraw is ultimately committed to the 27 discretion of the trial court. United States v. Carter, 560 F.3d 1107, 1113 (9th Cir. 2009). “In ruling 28 on a motion to withdraw as counsel, courts consider (1) the reasons why withdrawal is sought; (2) the 1 prejudice withdrawal may cause to other litigants; (3) the harm withdrawal might cause to the 2 administration of justice; and (4) the degree to which withdrawal will delay the resolution of the case.” 3 Beard v. Shuttermart of Cal., Inc., No. 3:07-cv-00594-WQH-NLS, 2008 WL 410694, at *2 (S.D. Cal. 4 Feb. 13, 2008) (citing Nat’l Career Coll., Inc. v. Spellings, No. 1:07-cv-00075-HG-LK, 2007 WL 5 2048776, at *2 (D. Haw. July 11, 2007)); see CE Res., Inc. v. Magellan Grp., LLC, No. 2:08-cv- 6 02999-MCE-KJM, 2009 WL 3367489, at *2 (E.D. Cal. Oct. 14, 2009) (noting that “[u]ltimately, the 7 court’s ruling must involve a balancing of the equities”). 8 In addition to the above factors, withdrawal of counsel is governed by the Local Rules. Local 9 Rule 182(d) provides that if withdrawal would leave a client without counsel, an attorney must file a 10 formal motion and provide the client and all other parties with notice of the motion to withdraw. Id. 11 The attorney must also submit an affidavit providing the current or last known address of the client 12 and describing the efforts made to notify the client of the motion to withdraw. Id. 13 Further, “[w]ithdrawal as attorney is governed by the Rules of Professional Conduct of the 14 State Bar of California, and the attorney shall conform to the requirements of those Rules.” Id. The 15 California Rules of Professional Conduct provide that if the rules of a court require permission for an 16 attorney to withdraw, the attorney may not withdraw from employment in a proceeding without the 17 permission of such court. Cal. R. Prof. Conduct 1.16(c). Also, counsel must take reasonable steps to 18 avoid prejudicing the rights of the client, including providing notice, allowing time for the client to 19 employ other counsel, and complying with applicable laws and rules. Cal. R. Prof. Conduct 1.6(d). 20 Grounds for permissive withdrawal exist when “the client by other conduct renders it unreasonably 21 difficult for the lawyer to carry out the representation effectively.” Cal. R. Prof. Conduct 1.6(b)(4). 22 Discussion 23 For the reasons set forth above, the Court renews its earlier finding (Doc. 78 at 4) that counsel 24 Wright has provided good cause to withdraw under the California Rules of Professional Conduct as it 25 appears a breakdown in the attorney-client relationship has occurred despite counsel Wright’s attempts 26 over an extended period of time (between March 2023 and the present) to engage with Plaintiff. (Doc. 27 78 at 4). 28 1 In his opposition, Plaintiff does not challenge counsel Wright’s characterization of the 2 breakdown in their relationship. Plaintiff attests that he “addressed to [counsel Wright] my concerns 3 and reasons asking him to explain a real ground reasons [sic] for his such filing for withdrawal” (Doc. 4 79 at 1-2). However, counsel Wright described in his motion – which Plaintiff received via email – 5 the reasons why he sought to withdraw. Plaintiff has not challenged or otherwise addressed counsel 6 Wright’s characterization of the breakdown, including counsel Wright’s representation that he 7 “specifically identified [Plaintiff’s] unreasonable conduct and provided Plaintiff an opportunity to 8 cure.” ((Doc. 75-2 at 2) 9 The Court further renews its finding that counsel Wright complied with the notice 10 requirements in Local Rule 182(d). The Court also notes granting withdrawal will not cause any 11 prejudice to any litigant, to the administration of justice, or delay the resolution of the case as cross 12 motions for summary judgment are pending before the Court and no trial date has been set. Among 13 other things, the Court notes that Defendants have not opposed counsel Wright’s motion to withdraw, 14 or otherwise asserted that they will suffer any prejudice from the Court’s granting of the motion. 15 Order to Show Cause 16 In its January 22 order permitting counsel Wright to withdraw as counsel of record in this 17 action, the Court directed Plaintiff to inform the Court within 14 days whether he intends to continue 18 prosecuting this action and, if so, whether he intends to obtain new counsel or represent himself. 19 (Doc. 78 at 2). The Court admonished Plaintiff: “Any failure by Plaintiff to respond to the court’s 20 order in this regard will result in the dismissal of this action for failure to prosecute and failure to 21 comply with the court’s order.” Id. More than 14 days have passed since service of the Court’s order 22 on Plaintiff and Plaintiff has failed to comply with the order or make any other filing setting forth 23 good cause for his delinquency. 24 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules or 25 with any order of the Court may be grounds for imposition by the Court of any and all 26 sanctions … within the inherent power of the Court.” Further, the Court has the inherent power to 27 control its docket and may, in the exercise of that power, impose sanctions where appropriate, 28 including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). 1 Based on the foregoing, the Court will order Plaintiff to show cause in writing why sanctions 2 should not be imposed for his failure to comply with Court orders and failure to prosecute. 3 Conclusion 4 For the reasons set forth above: 5 1. The Clerk of Court is DIRECTED to vacate the January 24, 2024, order granting 6 the motion to withdraw (Doc. 78); 7 2. Ryan C. Wright’s motion to withdraw as counsel (Doc. 75) is GRANTED; 8 3. The Clerk of the Court is DIRECTED to terminate Ryan C. Wright as the counsel 9 of record for Plaintiff Pravin O. Desai; 10 4. Counsel Wright shall comply with all obligations under Rule 1.16(e) of the 11 California Rules of Professional Conduct regarding the release of a client’s papers 12 and property and the return of unearned fees; 13 5. Plaintiff is substituted in pro se and is directed to comply with all hearing dates and 14 the rules of the Court; 15 6. The Clerk of the Court is DIRECTED to serve this order on Plaintiff by mail and on 16 Ryan C. Wright at his address of record identified in the docket (Wright Law 17 Corporation); and 18 19 20 Remainder of this Page Intentionally Left Blank 21 22 23 24 25 26 27 28 1 7. Plaintiff is ORDERED TO SHOW CAUSE in writing within ten (10) days of 2 service of this order why sanctions should not be imposed for his failure to comply 3 with the Court’s order (Doc. 78) directing him to inform the Court whether he 4 intends to continue prosecuting this action and, if so, whether he intends to obtain 5 new counsel or represent himself. Any failure by Plaintiff to respond to the 6 court’s order in this regard will result in the dismissal of this action for failur 7 to prosecute and failure to comply with the court’s order. 8 || IT IS SO ORDERED. Dated: □ February 9, 2024 | hr 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28