1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JEAN FLORES, on behalf of the Class and Case No. 1:22-cv-00193-JLT-SKO Class Members, 11 ORDER VACATING HEARING AND Plaintiff, DENYING WITHOUT PREJUDICE 12 MOTION TO WITHDRAW AS v. ATTORNEYS FOR DEFENDANT 13 POINT PICKUP TECHNOLOGIES, INC., (Doc. 30) 14 Defendant. 15 _____________________________________/
16 I. INTRODUCTION 17 On April 9, 2024, Cary G. Palmer and Jimmy Macias of the law firm Jackson Lewis P.C. 18 (“Attorneys Palmer and Macias”), attorneys for Defendant Point Pickup Technologies, Inc. 19 (“Defendant”), filed the instant motion to withdraw. (Doc. 30.) Pursuant to E.D. Cal. Local Rule 20 230(c), any opposition to the motion by Plaintiff Jean Flores (“Plaintiff’) or Defendant was due by 21 April 23, 2024. Neither Plaintiff nor Defendant filed a response. (See Docket.) The matter is 22 therefore deemed unopposed. See E.D. Cal. L.R. 230(c). 23 After having reviewed the motion and supporting material, the matter is deemed suitable for 24 decision without oral argument pursuant to E.D. Cal. Local Rule 230(g), and the hearing set for May 25 15, 2024 , will be vacated. 26 For the reasons set forth below, Attorneys Palmer and Macias’ motion to withdraw as 27 attorneys for Defendant will be denied, without prejudice to being renewed to correct the 28 deficiencies identified in this order. 1 II. BACKGROUND 2 On February 15, 2022, Plaintiff filed this putative class action lawsuit alleging various 3 California labor law violations against Defendant1 arising out of her working relationship with 4 Defendant as a “Pickup Partner.” (Doc. 1.) The crux of Plaintiff’s complaint centers on Defendant 5 misclassifying her and other class members as independent contractors instead of employees. (Id. 6 at ¶ 2; see also id. at ¶¶ 25, 27, 35, 39, 52(a), (g), 60, 151, 158.) 7 The instant motion to withdraw as attorneys for Defendant states that Attorneys Palmer and 8 Macias “are unable to effectively represent” Defendant because it is “engaged in an assignment by 9 creditor proceeding in Florida,” and that Attorneys Palmer and Macias “are no longer able to 10 communicate with the company” and “do not have any access to the information necessary to 11 proceed in this case.” (Doc. 30 at 2.) The motion further states that Attorneys Palmer and Macias 12 “attempted to obtain a contact at the company and [a] responsive person referred us to the 13 assignee[‘]s counsel, which is Gregory V. Demo from Pachulski Stang Ziehl & Jones LLP; Tel: 14 212.561.7730; Cell: 312.662.3573; Fax: 212.561.7777; and Email: GDemo@pszjlaw.com.” (Id.) 15 III. DISCUSSION 16 A. Legal Standard 17 Contrary to Attorneys Palmer and Macias’ motion,2 permissive withdrawal as attorney of 18 record in this Court is governed by Local Rule 182 of the Local Rules of the United States District 19 Court for the Eastern District of California (“Local Rules”) and Rule 1.16 of the Rules of 20 Professional Conduct of the State Bar of California (“Rules of Professional Conduct”). Local Rule 21 182(d) provides as follows: 22 Unless otherwise provided herein, an attorney who has appeared may not withdraw leaving the client in propria persona without leave of court upon noticed motion 23 and notice to the client and all other parties who have appeared. The attorney shall provide an affidavit stating the current or last known address or addresses of the 24 client and the efforts made to notify the client of the motion to withdraw. 25 Withdrawal as attorney is governed by the Rules of Professional Conduct of the State Bar of California, and the attorney shall conform to the requirements of those 26
27 1 On April 20, 2022, Plaintiff voluntarily dismissed Defendant Point Pickup Enterprises, Inc. without prejudice in this action pursuant to Federal Rule of Civil Procedure 41(a)(1). (Docs. 13, 14.) 28 2 Attorneys Palmer and Macias’ motion cites the Local Rules of another court and the previous rules of the California 1 of the Court issued hereunder. Leave to withdraw may be granted subject to such 2 appropriate conditions as the Court deems fit. 3 E.D. Cal. L.R. 182(d). 4 Rule of Professional Conduct 1.16(b)(4) provides that an attorney may request permission 5 to withdraw if “the client by other conduct renders it unreasonably difficult for the lawyer to carry 6 out the representation effectively.” Before an attorney can withdraw for any reason, however, Rule 7 of Professional Conduct 1.16(d) requires the attorney take “reasonable steps to avoid reasonably 8 foreseeable prejudice to the rights of the client, such as giving the client sufficient notice to permit 9 the client to retain other [attorney(s)], and complying with paragraph (e).”3 10 The decision to grant or deny a motion to withdraw is within the court’s discretion. McNally 11 v. Eye Dog Found. for the Blind, Inc., No. 1:09-cv-01184-AWI-SKO, 2011 WL 1087117, at *1 12 (E.D. Cal. Mar. 24, 2011) (citation omitted). District courts in this circuit have considered several 13 factors when evaluating a motion to withdraw, including the reason for withdrawal, prejudice to the 14 client, prejudice to the other litigants, harm to the administration of justice, and possible delay. See 15 Deal v. Countrywide Home Loans, No. C 09-01643 SBA, 2010 WL 3702459, at *2 (N.D. Cal. Sept. 16 15, 2010); CE Res., Inc. v. Magellan Group, LLC, No. 2:08-cv-02999-MCE-KJM, 2009 WL 17 3367489, at *2 (E.D. Cal. Oct. 14, 2009); Beard v. Shuttermart of Cal., Inc., No. 07CV594WQH 18 (NLS), 2008 WL 410694, at *2 (S.D. Cal. Feb. 13, 2008). 19 B. Analysis 20 The Court does not have sufficient information to determine whether Attorneys Palmer and 21 Macias’ withdrawal from representation of Defendant is appropriate. First, the motion is not 22 accompanied by an affidavit, as required by Local Rule 182(d). Next, as set forth above, Rule of 23 Professional Conduct 1.16(b)(4) provides that an attorney may request permission to withdraw if 24 “the client by other conduct renders it unreasonably difficult for the lawyer to carry out the 25 representation effectively.” The present motion asserts that Attorneys Palmer and Macias “are 26 unable to effectively represent” because they are “are no longer able to communicate with the 27 company” due to its involvement in an “assignment by creditor proceeding in Florida,” but it does 28 1 not specify the attempts made to communicate with Defendant (or its assignee), either to continue 2 the representation or to notify it of its intent to withdraw. (See Doc. 30 at 2.) In fact, the motion 3 indicates that Attorneys Palmer and Macias are in possession of the contact information for the 4 assignee’s counsel, but it does not specify whether they made any attempt to contact them. (See id.) 5 Absent a more specific explanation, set forth in an affidavit, regarding their inability to 6 communicate with Defendant (or its assignee) or their efforts to comply with Local Rule 182(d) and 7 Rules of Professional Conduct 1.16(d) and (e), the Court cannot determine whether Attorneys 8 Palmer and Macias have taken reasonable steps to avoid reasonably foreseeable prejudice to 9 Defendant’s rights, including allowing sufficient time for Defendant (or its assignee) to retain 10 substitute counsel. These factors are significant, as Defendant, a corporation, cannot proceed in this 11 litigation without counsel. 4 See Rowland v. California Men's Colony, 506 U.S. 194, 201-02 (1993) 12 (“It has been the law for the better part of two centuries . . . that a corporation may appear in the 13 federal courts only through licensed counsel.”); In re Highley, 459 F.2d 554
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JEAN FLORES, on behalf of the Class and Case No. 1:22-cv-00193-JLT-SKO Class Members, 11 ORDER VACATING HEARING AND Plaintiff, DENYING WITHOUT PREJUDICE 12 MOTION TO WITHDRAW AS v. ATTORNEYS FOR DEFENDANT 13 POINT PICKUP TECHNOLOGIES, INC., (Doc. 30) 14 Defendant. 15 _____________________________________/
16 I. INTRODUCTION 17 On April 9, 2024, Cary G. Palmer and Jimmy Macias of the law firm Jackson Lewis P.C. 18 (“Attorneys Palmer and Macias”), attorneys for Defendant Point Pickup Technologies, Inc. 19 (“Defendant”), filed the instant motion to withdraw. (Doc. 30.) Pursuant to E.D. Cal. Local Rule 20 230(c), any opposition to the motion by Plaintiff Jean Flores (“Plaintiff’) or Defendant was due by 21 April 23, 2024. Neither Plaintiff nor Defendant filed a response. (See Docket.) The matter is 22 therefore deemed unopposed. See E.D. Cal. L.R. 230(c). 23 After having reviewed the motion and supporting material, the matter is deemed suitable for 24 decision without oral argument pursuant to E.D. Cal. Local Rule 230(g), and the hearing set for May 25 15, 2024 , will be vacated. 26 For the reasons set forth below, Attorneys Palmer and Macias’ motion to withdraw as 27 attorneys for Defendant will be denied, without prejudice to being renewed to correct the 28 deficiencies identified in this order. 1 II. BACKGROUND 2 On February 15, 2022, Plaintiff filed this putative class action lawsuit alleging various 3 California labor law violations against Defendant1 arising out of her working relationship with 4 Defendant as a “Pickup Partner.” (Doc. 1.) The crux of Plaintiff’s complaint centers on Defendant 5 misclassifying her and other class members as independent contractors instead of employees. (Id. 6 at ¶ 2; see also id. at ¶¶ 25, 27, 35, 39, 52(a), (g), 60, 151, 158.) 7 The instant motion to withdraw as attorneys for Defendant states that Attorneys Palmer and 8 Macias “are unable to effectively represent” Defendant because it is “engaged in an assignment by 9 creditor proceeding in Florida,” and that Attorneys Palmer and Macias “are no longer able to 10 communicate with the company” and “do not have any access to the information necessary to 11 proceed in this case.” (Doc. 30 at 2.) The motion further states that Attorneys Palmer and Macias 12 “attempted to obtain a contact at the company and [a] responsive person referred us to the 13 assignee[‘]s counsel, which is Gregory V. Demo from Pachulski Stang Ziehl & Jones LLP; Tel: 14 212.561.7730; Cell: 312.662.3573; Fax: 212.561.7777; and Email: GDemo@pszjlaw.com.” (Id.) 15 III. DISCUSSION 16 A. Legal Standard 17 Contrary to Attorneys Palmer and Macias’ motion,2 permissive withdrawal as attorney of 18 record in this Court is governed by Local Rule 182 of the Local Rules of the United States District 19 Court for the Eastern District of California (“Local Rules”) and Rule 1.16 of the Rules of 20 Professional Conduct of the State Bar of California (“Rules of Professional Conduct”). Local Rule 21 182(d) provides as follows: 22 Unless otherwise provided herein, an attorney who has appeared may not withdraw leaving the client in propria persona without leave of court upon noticed motion 23 and notice to the client and all other parties who have appeared. The attorney shall provide an affidavit stating the current or last known address or addresses of the 24 client and the efforts made to notify the client of the motion to withdraw. 25 Withdrawal as attorney is governed by the Rules of Professional Conduct of the State Bar of California, and the attorney shall conform to the requirements of those 26
27 1 On April 20, 2022, Plaintiff voluntarily dismissed Defendant Point Pickup Enterprises, Inc. without prejudice in this action pursuant to Federal Rule of Civil Procedure 41(a)(1). (Docs. 13, 14.) 28 2 Attorneys Palmer and Macias’ motion cites the Local Rules of another court and the previous rules of the California 1 of the Court issued hereunder. Leave to withdraw may be granted subject to such 2 appropriate conditions as the Court deems fit. 3 E.D. Cal. L.R. 182(d). 4 Rule of Professional Conduct 1.16(b)(4) provides that an attorney may request permission 5 to withdraw if “the client by other conduct renders it unreasonably difficult for the lawyer to carry 6 out the representation effectively.” Before an attorney can withdraw for any reason, however, Rule 7 of Professional Conduct 1.16(d) requires the attorney take “reasonable steps to avoid reasonably 8 foreseeable prejudice to the rights of the client, such as giving the client sufficient notice to permit 9 the client to retain other [attorney(s)], and complying with paragraph (e).”3 10 The decision to grant or deny a motion to withdraw is within the court’s discretion. McNally 11 v. Eye Dog Found. for the Blind, Inc., No. 1:09-cv-01184-AWI-SKO, 2011 WL 1087117, at *1 12 (E.D. Cal. Mar. 24, 2011) (citation omitted). District courts in this circuit have considered several 13 factors when evaluating a motion to withdraw, including the reason for withdrawal, prejudice to the 14 client, prejudice to the other litigants, harm to the administration of justice, and possible delay. See 15 Deal v. Countrywide Home Loans, No. C 09-01643 SBA, 2010 WL 3702459, at *2 (N.D. Cal. Sept. 16 15, 2010); CE Res., Inc. v. Magellan Group, LLC, No. 2:08-cv-02999-MCE-KJM, 2009 WL 17 3367489, at *2 (E.D. Cal. Oct. 14, 2009); Beard v. Shuttermart of Cal., Inc., No. 07CV594WQH 18 (NLS), 2008 WL 410694, at *2 (S.D. Cal. Feb. 13, 2008). 19 B. Analysis 20 The Court does not have sufficient information to determine whether Attorneys Palmer and 21 Macias’ withdrawal from representation of Defendant is appropriate. First, the motion is not 22 accompanied by an affidavit, as required by Local Rule 182(d). Next, as set forth above, Rule of 23 Professional Conduct 1.16(b)(4) provides that an attorney may request permission to withdraw if 24 “the client by other conduct renders it unreasonably difficult for the lawyer to carry out the 25 representation effectively.” The present motion asserts that Attorneys Palmer and Macias “are 26 unable to effectively represent” because they are “are no longer able to communicate with the 27 company” due to its involvement in an “assignment by creditor proceeding in Florida,” but it does 28 1 not specify the attempts made to communicate with Defendant (or its assignee), either to continue 2 the representation or to notify it of its intent to withdraw. (See Doc. 30 at 2.) In fact, the motion 3 indicates that Attorneys Palmer and Macias are in possession of the contact information for the 4 assignee’s counsel, but it does not specify whether they made any attempt to contact them. (See id.) 5 Absent a more specific explanation, set forth in an affidavit, regarding their inability to 6 communicate with Defendant (or its assignee) or their efforts to comply with Local Rule 182(d) and 7 Rules of Professional Conduct 1.16(d) and (e), the Court cannot determine whether Attorneys 8 Palmer and Macias have taken reasonable steps to avoid reasonably foreseeable prejudice to 9 Defendant’s rights, including allowing sufficient time for Defendant (or its assignee) to retain 10 substitute counsel. These factors are significant, as Defendant, a corporation, cannot proceed in this 11 litigation without counsel. 4 See Rowland v. California Men's Colony, 506 U.S. 194, 201-02 (1993) 12 (“It has been the law for the better part of two centuries . . . that a corporation may appear in the 13 federal courts only through licensed counsel.”); In re Highley, 459 F.2d 554, 555 (9th Cir.1972) (“A 14 corporation can appear in a court proceeding only through an attorney at law.”). 15 IV. CONCLUSION AND ORDER 16 Based on the foregoing, it IS HEREBY ORDERED that Attorneys Palmer and Macias’s 17 motion to withdraw as attorneys of record for Defendant Point Pickup Technologies, Inc. (Doc. 30) 18 is DENIED without prejudice. The hearing set for May 15, 2024, is VACATED. 19 If Attorneys Palmer and Macias renew their motion to withdraw from representing 20 Defendant, the renewed motion must be accompanied by an affidavit that, without disclosing 21 privileged communications, informs the Court their attempts to communicate with Defendant (or its 22
23 4 According to the notice previously filed with the Court, an assignee for the benefit of the creditors of Defendant filed a petition in the Miami-Dade County Circuit Court on February 23, 2024, pursuant to the provisions of Chapter 727 of 24 the Florida Statutes. (See Doc. 29.) An assignment for the benefit of creditors (“ABC”) functions as “a state-law alternative to bankruptcy” that provides a “simpler and cheaper process” for liquidating assets. Ullrich v. Welt, 810 25 F.3d 781, 789 (11th Cir. 2015) (interpreting Florida's ABC statute). An ABC “[does] not limit the ability of third parties to assert their contractual right[s] . . . during the [ABC's] liquidation process.” Akin Bay Co., LLC v. Von Kahle, 180 26 So. 3d 1180, 1182-83 (Fla. Dist. Ct. App. 2015); see also Mason Tenders Dist. Council Welfare Fund v. Logic Constr. Corp., 7 F. Supp. 2d 351, 357 n.36 (“An assignment for the benefit of creditors is distinguishable from a federal 27 bankruptcy in that the debtor-assignor remains liable ....”). “Indeed, Florida’s ABC act protects assets from execution; it does not protect the assigning party from judgment.” Pac. Surv. Grp., LLC v. Tyche High Seas Cap. Corp., No. C21- 28 1712JLR, 2023 WL 5152661, at *5 (W.D. Wash. Aug. 10, 2023) (citing Moffatt & Nichol, Inc. v. B.E.A. Int'l Corp., 48 1 assignee) and explains their efforts to comply with Local Rule 182(d) and Rules of Professional 2 Conduct 1.16(d) and (e). 3 IT IS SO ORDERED. 4
5 Dated: April 26, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 6
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