Lincoln v. Chula Vista Police Department

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICKY FADARA LINCOLN and Case No.: 22-cv-01569-WQH-BJC KATHERINE I. FREDERICKS, 12 ORDER Plaintiffs, 13 v. 14 CHULA VISTA POLICE 15 DEPARTMENT, CITY OF 16 CHULA VISTA, and DOES 1– 100, 17 Defendants. 18 HAYES, Judge: 19 The matter before the Court is the Ex Parte Request to be Relieved as Counsel and 20 Request for Order to Extend the Deadlines on the Current Order (ECF No. 39) filed by 21 counsel for Plaintiffs Ricky Fadara Lincoln and Katherine I. Fredericks (collectively, 22 “Plaintiffs”), Bonita P. Martinez (“Plaintiffs’ Counsel”). 23 I. REQUEST TO WITHDRAW AS COUNSEL 24 “An attorney may not withdraw as counsel except by leave of court, and the decision 25 to grant or deny counsel’s motion to withdraw is committed to the discretion of the trial 26 court.” Urias v. Labcorp Peri-Approval & Commercialization Inc., No. 23-CV-1815 JLS 27 (MSB), 2023 WL 8845384, at *1 (S.D. Cal. Dec. 21, 2023) (citation omitted); see also 28 1 United States v. Carter, 560 F.3d 1107, 1113 (9th Cir. 2009); S.D. Cal. Civ. L.R. 83.3(f)(3) 2 (requiring that a notice of motion to withdraw as attorney of record be served on the adverse 3 party and on the moving attorney’s client, along with a declaration of service). 4 In ruling on a motion to withdraw as counsel, courts consider: (1) the reasons why withdrawal is sought; (2) the prejudice withdrawal may cause to other 5 litigants; (3) the harm withdrawal might cause to the administration of justice; 6 and (4) the degree to which withdrawal will delay the resolution of the case.

7 Leatt Corp. v. Innovative Safety Tech., LLC, No. 09-CV-1301-IEG POR, 2010 WL 444708, 8 at *1 (S.D. Cal. Feb. 2, 2010) (citation omitted). 9 Plaintiffs’ Counsel asserts in the Motion that “[t]here has been an irreconcilable 10 breakdown in the attorney-client relationship.” (ECF No. 39 at 1.) Plaintiffs’ Counsel 11 explains that she has “contacted and provided the plaintiffs with a Substitution of Attorney 12 to sign multiple times, but there has been no response in regards to the Substitution.” Id. at 13 1. Plaintiffs’ Counsel requests the Court relieve her as counsel “[d]ue to the hostile and 14 irreconcilable breakdown in the attorney-client relationship” and the “lack of response and 15 cooperation from the clients.” Id. at 2. 16 Defendants Chula Vista Police Department (“CVPD”) and City of Chula Vista 17 (“City”) (collectively, the “City Defendants”) filed a “Notice of Non-Opposition to the 18 Declaration of Bonita P. Martinez’s and Plaintiffs’ Ex Parte Request to be Relieved a[s] 19 Counsel.” (ECF No. 40.) The City Defendants request the Court order Plaintiffs “to provide 20 their current contact information or the contact information of their counsel of record 21 within five (5) days of any order relieving [Plaintiffs’ Counsel] as Plaintiffs’ counsel of 22 record.” Id. at 1–2. 23 The Court finds that good cause exists to grant withdrawal. Plaintiffs’ Counsel’s Ex 24 Parte Request to be Relieved as Counsel is granted. 25 / / / 26 / / / 27 / / / 28 1 II. REQUEST TO EXTEND DEADLINES IN THE COURT’S PRIOR ORDER 2 The Ex Parte Motion also requests that the Court “extend the deadlines on the 3 [Court’s prior Order], to provide plaintiffs sufficient time to find new representation and/or 4 plan their new course of action.” (ECF No. 39 at 2.) 5 In the Court’s prior Order issued on September 25, 2024 (the “September 25th 6 Order”) (ECF No. 37), the Court granted in part and denied in part the City Defendants’ 7 Motion to Dismiss Plaintiffs’ Third Amended Complaint and Claims Therein Under Rule 8 12(b)(6) (ECF No. 33). In relevant part, the September 25th Order denied the Motion to 9 Dismiss Plaintiffs’ Fourth Amendment and Second Amendment claims against the Doe 10 Defendants,1 and stated: 11 Plaintiffs shall expeditiously identify the Doe Defendants and move to amend the [Third Amended Complaint] to properly name those Defendants and 12 adequately allege the personal participation of each named Defendant in the 13 alleged Fourth Amendment and Second Amendment violations. CVPD and City, and their counsel, shall cooperate with all appropriate discovery requests 14 from Plaintiffs aimed at identifying the Doe Defendants who are alleged to 15 have been employed by CVPD and City. Plaintiffs are cautioned that if, after an opportunity to conduct discovery, Plaintiffs continue to fail to identify the 16 Doe Defendants and adequately allege the personal participation of each 17 named Defendant in the alleged legal violations, the [Third Amended Complaint] will be dismissed in its entirety. No later than sixty (60) days after 18 the date this Order is filed, Plaintiffs shall either (a) file a motion for leave to 19 amend the [Third Amended Complaint], accompanied by a proposed amended complaint identifying the Doe Defendants, or (b) file a status report showing 20 cause why Plaintiffs have failed to file a motion for leave to amend the [Third 21 Amended Complaint].

22 (ECF No. 37 at 14.) 23 The Court vacates the 60-day deadline set in the September 25th Order. The Court 24 will reset the deadline for Plaintiffs to comply with the September 25th Order after 25 Plaintiffs file the notice with the Court that is required by this Order. 26

27 1 However, the Court dismissed without prejudice Plaintiffs’ § 1983 claims against Doe Defendant number 28 1 CONCLUSION 2 IT IS HEREBY ORDERED that Plaintiffs’ Counsel’s Ex Parte Request to be 3 Relieved as Counsel and Request for Order to Extend the Deadlines on the Current Order 4 ||(ECF No. 39) is granted. Plaintiffs’ Counsel is withdrawn as counsel of record in this 5 || action. 6 IT IS FURTHER ORDERED that, no later than seven (7) days from the entry of this 7 || Order, Plaintiffs’ Counsel shall file a certificate of service indicating that she has served 8 || Plaintiffs with copies of this Order and the September 25th Order. 9 IT IS FURTHER ORDERED that, no later than twenty-one (21) days from the entry 10 this Order, Plaintiffs shall file a notice with the Court that indicates: (1) Plaintiffs’ 11 |}current mailing address; and (2) whether Plaintiffs will be proceeding pro se or obtaining 12 || counsel to represent them in this action. Plaintiffs are cautioned that failing to respond to 13 Order may result in dismissal of this action without prejudice for failure to prosecute 14 || and failure to comply with the Court’s Order. 15 IT IS FURTHER ORDERED that the deadline for Plaintiffs to comply with the 16 || Court’s September 25th Order is vacated. The deadline will be reset after Plaintiffs file the 17 || notice required by this Order. 18 Dated: October 22, 2024 BME: ie Z. A a 19 Hon. William Q. Hayes 0 United States District Court 21 22 23 24 25 26 27 28