James V. Deppoleto Jr. v. Takeover Industries Incorporated, et al.

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 James V. Deppoleto Jr., Case No. 2:22-cv-02013-GMN-DJA 6 Plaintiff, 7 Order v. 8 Takeover Industries Incorporated, et al., 9 Defendants. 10 11 Steven Don Bennion, Jr., Esq. of The Law Office of S. Don. Bennion and Jeffrey J. 12 Whitehead, Esq. of the law office of Whitehead and Burnett move to withdraw as counsel for 13 Defendants Takeover Industries, Inc.; Tom Zarro; Michael Holley; Toby McBride; Joseph Pavlik; 14 and NextGen Beverage, LLC. (ECF No. 172). Bennion and Whitehead explain that Defendants 15 have not met their financial obligations and that fundamental differences have developed between 16 them and Defendants. Defendants Zarro, Holley, McBride, and Pavlik (the “Individual 17 Defendants”) do not oppose the motion, but ask that the Court defer ruling on it so that they might 18 have time to resolve the fee issue with Bennion and Whitehead or find new representation. (ECF 19 Nos. 176, 177). Plaintiff also does not oppose the motion, but asserts that his non-opposition is 20 premised on keeping the jury trial date of June 15, 2026, and on Bennion and Whitehead 21 remaining accountable for any outstanding discovery. (ECF No. 175). The Individual 22 Defendants assert in response to Plaintiff’s non-opposition that they have fully complied with 23 their discovery obligations. (ECF No. 178, 179). Bennion and Whitehead assert in reply that 24 Plaintiff’s claim that Defendants have not complied with their discovery obligations is an abrupt 25 change in position. (ECF No. 180). Bennion and Whitehead add that, regardless of any fee 26 dispute, they still have a fundamental disagreement with Defendants and, therefore, withdrawal is 27 appropriate. 1 Under Local Rule IA 11-6(e), “[e]xcept for good cause shown, no withdrawal or 2 substitution will be approved if it would result in delay of discovery, the trial, or any hearing in 3 the case.” Additionally, commercial entities must be represented by counsel. See Reading 4 Intern., Inc. v. Malulani Group, Ltd., 814 F.3d 1046, 1053 (9th Cir. 2016). Here, given the fact 5 that trial is about two months away, the Court does not find that Bennion and Whitehead’s 6 withdrawal will necessarily result in delay of trial. And, to the extent that the parties believe it 7 might, they may still move for the appropriate relief. The Court therefore grants the motion to 8 withdraw and will set a deadline for the entity defendants Takeover and NextGen to retain 9 counsel. Additionally, the Court declines to condition the withdrawal on keeping the trial date 10 and on Bennion and Whitehead remaining accountable for outstanding discovery as Plaintiff 11 requests. Any decisions regarding the trial date will be determined by the assigned district judge, 12 not the undersigned magistrate judge. Additionally, the Court declines to rule on Plaintiff’s 13 discovery dispute in the context of a motion to withdraw. 14 15 IT IS THEREFORE ORDERED that Bennion and Whitehead’s motion to withdraw 16 (ECF No. 172) is granted. The Clerk of Court is kindly directed to remove Steven Don Bennion, 17 Jr., Esq. and Jeffrey J. Whitehead, Esq. as counsel of record and from the electronic service list 18 for this case. 19 IT IS FURTHER ORDERED that Takeover and NextGen1 must appear through counsel 20 in this action on or before May 4, 2026. 21 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to place 22 Defendants’ last known addresses on the docket: 23 Tom Zarro 24 1100 Boletus Dr. 25 Henderson, NV 89011 26 27 1 The case is currently stayed as to Takeover given its bankruptcy. (ECF No. 164). However, Takeover is also under an obligation to file joint status report every thirty days and, because it is a 1 Michael Holley 2 5137 E. Armour St. Cave Creek, Arizona 85331 3 Toby McBride 4 2948 Monticello Drive Stockton, CA 95209 5

6 Joseph Pavlik 17047 Racoon Trail 7 Strongsville, Ohio 44136

8 Takeover Industries, Inc 401 Ryland St Ste 200-A 9 Reno, NV 89052 10 NextGen Beverage, LLC 11 3741 El Sereno Ave. Altadena, CA 91001 12 13 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to send a copy 14 of this order to each Defendant at the addresses above. 15 16 DATED: April 20, 2026, 17 DANIEL J. ALBREGTS 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27