Mosley v. Del Toro

• Court: District Court, S.D. California
• Decided: January 9, 2023
• Docket: 3:21-cv-01129
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IVAN MOSLEY, an individual, Case No.: 21-CV-1129 TWR (JLB)

12 Plaintiff, ORDER GRANTING DONALD R. 13 v. HOLBEN & ASSOCIATES, APC’S RENEWED MOTION TO BE 14 CARLOS DEL TORO, Secretary RELIEVED AS COUNSEL FOR of the Navy, Department of the Navy, 15 PLAINTIFF IVAN MOSLEY a governmental entity; and DOES 1

16 through 25, inclusive, (ECF No. 38) 17 Defendants. 18 19 20 The Court denied without prejudice Plaintiff’s counsel’s prior motion seeking to be 21 relieved as counsel on the grounds that the motion was insufficiently supported and that 22 allowing Plaintiff’s counsel to withdraw before the Early Neutral Evaluation (“ENE”) 23 conference “might work an injustice of cause undue delay in the proceedings.” (See ECF 24 No. 31.) Presently before the Court is Donald R. Holben & Associates, APC’s Renewed 25 Motion to Be Relieved as Counsel for Plaintiff Ivan Mosley (“Renewed Mot.,” ECF No. 26 38), which is noticed for a hearing on January 26, 2023, as well as the Notice of Non- 27 Opposition by Defendant Carlos Del Toro, Secretary of the Navy. (See ECF No. 42 (“Non- 28 Opp’n”).) The Court determines that the Renewed Motion is appropriate for resolution on 1 the papers without further briefing and without oral argument pursuant to Civil Local Rule 2 7.1(d)(1). 3 As noted in the Renewed Motion, (see ECF No. 38-1 (“Mem.”) at 3 (quoting Beard 4 v. Shuttermart of Cal., Inc., No. 07-CV-594-WQH (NLS), 2008 WL 410694, at *2 (S.D. 5 Cal. Feb.13, 2008)), “[a]n attorney may not withdraw as counsel except by leave of court, 6 and the decision to grant or deny counsel's motion to withdraw is committed to the 7 discretion of the trial court.” “In deciding whether to grant a motion to withdraw as 8 counsel, courts consider: (1) the reasons why withdrawal is sought; (2) the prejudice 9 withdrawal may cause to other litigants; (3) the harm withdrawal might cause to the 10 administration of justice; and (4) the degree to which withdrawal will delay the resolution 11 of the case.” (Id. (quoting Beard, 2008 WL 410694, at *2). 12 Here, the Court’s prior reservations regarding Plaintiff’s counsel’s withdrawal have 13 been mitigated. The ENE has concluded, (see ECF No. 34, 35), and the Renewed Motion 14 specifies that withdrawal is being sought because Plaintiff began breaching his retainer 15 agreement with his counsel beginning in December 2021. (See Mem. at 2; see also ECF 16 No. 38-2 (“Holben Decl.”) ¶ 4;) Jaguar Land Rover Ltd. v. A-Z Wheels LLC, No. 13-CV- 17 878 BEN (JMA), 2013 WL 12094184, at *1 (S.D. Cal. Dec. 10, 2013) (noting that “even 18 [a client]’s refusal to pay attorney’s fees, by itself, is a sufficient basis for granting 19 [counsel]’ motion” to withdraw). Further, the Renewed Motion complies with this 20 District’s procedural requirements because it has been served on Plaintiff, (see ECF No. 21 43), as required by Civil Local Rule 83.3(f)(3). 22 Good cause appearing, the Court therefore GRANTS Plaintiff’s counsel’s Renewed 23 Motion. Plaintiff’s counsel SHALL SERVE Plaintiff with a copy of this Order within 24 three (3) days of the electronic docketing of this Order, and the Clerk of the Court SHALL 25 TERMINATE Donald R. Holben, Nicole Christine Baldwin, Paul H. Duvall, and Thomas 26 George Routson as attorneys of record for Plaintiff and SHALL UPDATE the docket to 27 reflect that Plaintiff is now proceeding pro se. 28 / / / ] The Court advises Plaintiff that, unless and until he retains new counsel, he is 2 || proceeding pro se in this matter. Accordingly, Plaintiff “must keep the Court and opposing 3 || parties advised as to [his] current address.” See S.D. Cal. CivLR 83.11(b). Failure to do 4 ||so may result in the dismissal without prejudice of this action for failure to prosecute. See 5 ||id. Further, as Defendant notes, (see Non-Opp’n at 1-2), Plaintiff must comply with the 6 || dates set forth in the Court’s December 2, 2022 Scheduling Order, (see ECF No. 36), as 7 || well as the Federal Rules of Civil Procedure and this District’s Civil Local Rules. See S.D. 8 CivLR 83.11(a). Plaintiffis cautioned that “[flailure ... of any party[] to comply with 9 || th[is District’s Civil Local R]ules, with the Federal Rules of Civil or Criminal Procedure, 10 || or with any order of the Court may be grounds for imposition by the Court of any and all 11 |} sanctions authorized by statute or rule or within the inherent power of the Court, including, 12 without limitation, dismissal of any actions, entry of default, finding of contempt, 13 ||imposition of monetary sanctions or attorneys’ fees and costs, and other lesser sanctions.” 14 || See S.D. Cal. CivLR 83.1(a). 15 IT IS SO ORDERED. 16 ||Dated: January 9, 2023 i [59 14 bre 18 Honorable Todd W. Robinson United States District Judge 19 20 21 22 23 24 25 26 27 28