1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NEVADA FLEET LLC, No. 2:17-cv-01732-DAD-CSK 12 Plaintiff, 13 v. ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL OF RECORD 14 FEDEX CORPORATION, et al., FOR PLAINTIFF AND DENYING AS MOOT EX PARTE APPLICATION TO WITHDRAW 15 Defendants. AS COUNSEL 16 (Doc. Nos. 175, 180) 17 18 This matter is before the court on the motion to withdraw as plaintiff Nevada Fleet LLC’s 19 counsel of record filed by attorney Brandon Claus Fernald on May 14, 2024.1 (Doc. No. 175.) 20 For the reasons explained below, the court will grant the motion to withdraw as counsel and set a 21 deadline for plaintiff to retain new counsel in order to proceed with this action or file a notice of 22 dismissal of this action. 23 BACKGROUND 24 Plaintiff filed the complaint initiating this action on August 18, 2017. (Doc. No. 1.) On 25 May 4, 2020, attorney Tanya Kim Harris was terminated as counsel of record for plaintiff and 26
27 1 Attorney Fernald subsequently filed an ex parte application similarly requesting that he be terminated as plaintiff’s counsel. (See Doc. No. 180.) Because the court will grant attorney 28 Fernald’s pending motion, the court will deny the ex parte application as moot. 1 replaced by attorney Mary Kathleen Gallagher. (Doc. No. 60.) On August 13, 2020, the 2 previously assigned district judge issued an order substituting attorney Fernald as counsel of 3 record for plaintiff in place of attorney Gallagher. (Doc. No. 69.) 4 Plaintiff filed the operative third amended complaint (“TAC”) on April 22, 2022. (Doc. 5 No. 126.) This case was reassigned to the undersigned on August 25, 2022. (Doc. No. 153.) On 6 January 18, 2024, the court issued an order granting in part and denying in part defendants’ 7 motions to dismiss plaintiff’s TAC. (Doc. No. 162.) On February 9, 2024, the court issued a 8 scheduling order directing that, among other deadlines, fact discovery in this case be conducted 9 so as to be completed by July 19, 2024 and expert disclosures be completed by August 16, 2024. 10 (Doc. No. 167.) 11 In his declaration filed in support of the pending motion to withdraw, attorney Fernald 12 states that in or about early April 2024, he was instructed by plaintiff to stop all work on this 13 matter and was informed that plaintiff would be substituting new counsel into this case “within a 14 few weeks.” (Doc. No. 175 at 8.) On May 10, 2024, plaintiff’s principal, Tom Layton, emailed 15 defendants’ counsel that plaintiff had terminated attorney Fernald and that plaintiff would have 16 new counsel substituting into the case shortly. (Id.; see also id. at 10–11.) Defendants’ counsel 17 forwarded this email to attorney Fernald, who had not been made aware of his termination. (Id. at 18 8; see also id. at 10–11 (“Brandon and Adam – We just received this from Tom. I am not sure 19 what is going on, but wanted to make sure you saw this since it came from him directly.”)). 20 Plaintiff Nevada Fleet LLC has, however, not proposed any substitution of attorney in place of its 21 attorney of record, attorney Fernald. 22 On May 14, 2024, attorney Fernald filed the pending motion to withdraw as counsel of 23 record for plaintiff. (Doc. No. 175.) Defendants filed a response on May 28, 2024, requesting 24 that if the court grants the motion, that the grant be conditioned on new counsel appearing on 25 behalf of plaintiff within 10 days from the court’s order. (Doc. No. 178 at 3.) Defendants also 26 request that, in light of rapidly approaching discovery deadlines, the court direct the parties to 27 submit a stipulation proposing an amended scheduling order within 10 days of new counsel’s 28 entry of appearance on behalf of plaintiff. (Id. at 4.) On June 28, 2024, attorney Fernald filed an 1 ex parte application requesting an in camera hearing to address his motion to withdraw. (Doc. 2 No. 180.) 3 LEGAL STANDARD 4 An attorney’s withdrawal is governed by Local Rule 182 and the Rules of Professional 5 Conduct of the State Bar of California (“Rules of Professional Conduct”). In this regard, Local 6 Rule 182(d) provides: 7 Unless otherwise provided herein, an attorney who has appeared may not withdraw leaving the client in propria persona without 8 leave of court upon noticed motion and notice to the client and all other parties who have appeared. The attorney shall provide an 9 affidavit stating the current or last known address or addresses of the client and the efforts made to notify the client of the motion to 10 withdraw. Withdrawal as attorney is governed by the Rules of Professional Conduct of the State Bar of California, and the 11 attorney shall conform to the requirements of those Rules. 12 L.R. 182(d). Rule 1.16(a) of the California Rules of Professional Conduct provides several 13 grounds upon which an attorney “shall withdraw from the representation of a client,” including if 14 “the client discharges the lawyer.” Cal. R. Prof. Conduct 1.16(a)(4) (emphasis added).2 15 However, representation shall not be terminated until the attorney “has taken reasonable steps to 16 avoid reasonably foreseeable prejudice to the rights of the client, such as giving the client 17 sufficient notice to permit the client to retain other counsel.” Cal. R. Prof. Conduct 1.16(d). 18 Local Rule 183 further provides that “[a] corporation or other entity may appear only by 19 an attorney.” L.R. 183(a). “While individuals may appear in propria persona, corporations and 20 other entities may appear only through an attorney; an unrepresented entity cannot file any 21 2 In contrast, withdrawal is not mandatory if it is based on the grounds listed in Rule 1.16(b) of 22 the California Rules of Professional Conduct, in which case the decision to grant or deny an 23 attorney’s motion to withdraw is committed to the discretion of the trial court. “In ruling on a motion to withdraw as counsel, courts consider: (1) the reasons why withdrawal is sought; (2) the 24 prejudice withdrawal may cause to other litigants; (3) the harm withdrawal might cause to the administration of justice; and (4) the degree to which withdrawal will delay the resolution of the 25 case.” Beard v. Shuttermart of Cal., Inc., No. 3:07-cv-00594-WQH-NLS, 2008 WL 410694, at *2 (S.D. Cal. Feb. 13, 2008); see also CE Res., Inc. v. Magellan Grp., LLC, No. 2:08-cv-02999- 26 MCE-KJM, 2009 WL 3367489, at *2 (E.D. Cal. Oct. 14, 2009) (noting that “[u]ltimately, the 27 court’s ruling must involve a balancing of the equities”). Because the court determines that attorney Fernald’s withdrawal in this case is mandatory, the court need not address these factors 28 in this order. 1 pleadings, make or oppose any motions, or present any evidence to contest liability.” Caveman 2 Foods, LLC v. Ann Payne’s Caveman Foods, LLC, No. 2:12-cv-01112-WBS-CKD, 2015 WL 3 6736801, at *2 (E.D. Cal. Nov. 4, 2015) (citing Rowland v. Cal. Men’s Colony, 506 U.S. 194, 4 202 (1993)). 5 ANALYSIS 6 Here, attorney Fernald moves to withdraw as counsel of record on behalf of plaintiff 7 because plaintiff’s principal has discharged him as its lawyer. (Doc. No. 175; see also Doc. 8 No. 180.) In particular, plaintiff, through its principal Mr. Layton, emailed defendant’s counsel 9 directly and informed opposing counsel that it had terminated attorney Fernald. (Doc. No. 175 at 10 8, 10–11.) Defendant’s counsel then forwarded that email to attorney Fernald. (Id. at 10–11.) In 11 light of plaintiff’s decision to discharge attorney Fernald as its counsel in this action, attorney 12 Fernald’s withdrawal is mandatory under Rule of Professional Conduct 1.16(a)(4). Thus, the 13 pending motion to withdraw as counsel for plaintiff will be granted.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NEVADA FLEET LLC, No. 2:17-cv-01732-DAD-CSK 12 Plaintiff, 13 v. ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL OF RECORD 14 FEDEX CORPORATION, et al., FOR PLAINTIFF AND DENYING AS MOOT EX PARTE APPLICATION TO WITHDRAW 15 Defendants. AS COUNSEL 16 (Doc. Nos. 175, 180) 17 18 This matter is before the court on the motion to withdraw as plaintiff Nevada Fleet LLC’s 19 counsel of record filed by attorney Brandon Claus Fernald on May 14, 2024.1 (Doc. No. 175.) 20 For the reasons explained below, the court will grant the motion to withdraw as counsel and set a 21 deadline for plaintiff to retain new counsel in order to proceed with this action or file a notice of 22 dismissal of this action. 23 BACKGROUND 24 Plaintiff filed the complaint initiating this action on August 18, 2017. (Doc. No. 1.) On 25 May 4, 2020, attorney Tanya Kim Harris was terminated as counsel of record for plaintiff and 26
27 1 Attorney Fernald subsequently filed an ex parte application similarly requesting that he be terminated as plaintiff’s counsel. (See Doc. No. 180.) Because the court will grant attorney 28 Fernald’s pending motion, the court will deny the ex parte application as moot. 1 replaced by attorney Mary Kathleen Gallagher. (Doc. No. 60.) On August 13, 2020, the 2 previously assigned district judge issued an order substituting attorney Fernald as counsel of 3 record for plaintiff in place of attorney Gallagher. (Doc. No. 69.) 4 Plaintiff filed the operative third amended complaint (“TAC”) on April 22, 2022. (Doc. 5 No. 126.) This case was reassigned to the undersigned on August 25, 2022. (Doc. No. 153.) On 6 January 18, 2024, the court issued an order granting in part and denying in part defendants’ 7 motions to dismiss plaintiff’s TAC. (Doc. No. 162.) On February 9, 2024, the court issued a 8 scheduling order directing that, among other deadlines, fact discovery in this case be conducted 9 so as to be completed by July 19, 2024 and expert disclosures be completed by August 16, 2024. 10 (Doc. No. 167.) 11 In his declaration filed in support of the pending motion to withdraw, attorney Fernald 12 states that in or about early April 2024, he was instructed by plaintiff to stop all work on this 13 matter and was informed that plaintiff would be substituting new counsel into this case “within a 14 few weeks.” (Doc. No. 175 at 8.) On May 10, 2024, plaintiff’s principal, Tom Layton, emailed 15 defendants’ counsel that plaintiff had terminated attorney Fernald and that plaintiff would have 16 new counsel substituting into the case shortly. (Id.; see also id. at 10–11.) Defendants’ counsel 17 forwarded this email to attorney Fernald, who had not been made aware of his termination. (Id. at 18 8; see also id. at 10–11 (“Brandon and Adam – We just received this from Tom. I am not sure 19 what is going on, but wanted to make sure you saw this since it came from him directly.”)). 20 Plaintiff Nevada Fleet LLC has, however, not proposed any substitution of attorney in place of its 21 attorney of record, attorney Fernald. 22 On May 14, 2024, attorney Fernald filed the pending motion to withdraw as counsel of 23 record for plaintiff. (Doc. No. 175.) Defendants filed a response on May 28, 2024, requesting 24 that if the court grants the motion, that the grant be conditioned on new counsel appearing on 25 behalf of plaintiff within 10 days from the court’s order. (Doc. No. 178 at 3.) Defendants also 26 request that, in light of rapidly approaching discovery deadlines, the court direct the parties to 27 submit a stipulation proposing an amended scheduling order within 10 days of new counsel’s 28 entry of appearance on behalf of plaintiff. (Id. at 4.) On June 28, 2024, attorney Fernald filed an 1 ex parte application requesting an in camera hearing to address his motion to withdraw. (Doc. 2 No. 180.) 3 LEGAL STANDARD 4 An attorney’s withdrawal is governed by Local Rule 182 and the Rules of Professional 5 Conduct of the State Bar of California (“Rules of Professional Conduct”). In this regard, Local 6 Rule 182(d) provides: 7 Unless otherwise provided herein, an attorney who has appeared may not withdraw leaving the client in propria persona without 8 leave of court upon noticed motion and notice to the client and all other parties who have appeared. The attorney shall provide an 9 affidavit stating the current or last known address or addresses of the client and the efforts made to notify the client of the motion to 10 withdraw. Withdrawal as attorney is governed by the Rules of Professional Conduct of the State Bar of California, and the 11 attorney shall conform to the requirements of those Rules. 12 L.R. 182(d). Rule 1.16(a) of the California Rules of Professional Conduct provides several 13 grounds upon which an attorney “shall withdraw from the representation of a client,” including if 14 “the client discharges the lawyer.” Cal. R. Prof. Conduct 1.16(a)(4) (emphasis added).2 15 However, representation shall not be terminated until the attorney “has taken reasonable steps to 16 avoid reasonably foreseeable prejudice to the rights of the client, such as giving the client 17 sufficient notice to permit the client to retain other counsel.” Cal. R. Prof. Conduct 1.16(d). 18 Local Rule 183 further provides that “[a] corporation or other entity may appear only by 19 an attorney.” L.R. 183(a). “While individuals may appear in propria persona, corporations and 20 other entities may appear only through an attorney; an unrepresented entity cannot file any 21 2 In contrast, withdrawal is not mandatory if it is based on the grounds listed in Rule 1.16(b) of 22 the California Rules of Professional Conduct, in which case the decision to grant or deny an 23 attorney’s motion to withdraw is committed to the discretion of the trial court. “In ruling on a motion to withdraw as counsel, courts consider: (1) the reasons why withdrawal is sought; (2) the 24 prejudice withdrawal may cause to other litigants; (3) the harm withdrawal might cause to the administration of justice; and (4) the degree to which withdrawal will delay the resolution of the 25 case.” Beard v. Shuttermart of Cal., Inc., No. 3:07-cv-00594-WQH-NLS, 2008 WL 410694, at *2 (S.D. Cal. Feb. 13, 2008); see also CE Res., Inc. v. Magellan Grp., LLC, No. 2:08-cv-02999- 26 MCE-KJM, 2009 WL 3367489, at *2 (E.D. Cal. Oct. 14, 2009) (noting that “[u]ltimately, the 27 court’s ruling must involve a balancing of the equities”). Because the court determines that attorney Fernald’s withdrawal in this case is mandatory, the court need not address these factors 28 in this order. 1 pleadings, make or oppose any motions, or present any evidence to contest liability.” Caveman 2 Foods, LLC v. Ann Payne’s Caveman Foods, LLC, No. 2:12-cv-01112-WBS-CKD, 2015 WL 3 6736801, at *2 (E.D. Cal. Nov. 4, 2015) (citing Rowland v. Cal. Men’s Colony, 506 U.S. 194, 4 202 (1993)). 5 ANALYSIS 6 Here, attorney Fernald moves to withdraw as counsel of record on behalf of plaintiff 7 because plaintiff’s principal has discharged him as its lawyer. (Doc. No. 175; see also Doc. 8 No. 180.) In particular, plaintiff, through its principal Mr. Layton, emailed defendant’s counsel 9 directly and informed opposing counsel that it had terminated attorney Fernald. (Doc. No. 175 at 10 8, 10–11.) Defendant’s counsel then forwarded that email to attorney Fernald. (Id. at 10–11.) In 11 light of plaintiff’s decision to discharge attorney Fernald as its counsel in this action, attorney 12 Fernald’s withdrawal is mandatory under Rule of Professional Conduct 1.16(a)(4). Thus, the 13 pending motion to withdraw as counsel for plaintiff will be granted. Additionally, within 14 fourteen (14) days of the date of this order, plaintiff shall file either a notice of appearance by its 15 new counsel in this action or a notice of the voluntary dismissal of this action.3 16 The court also hereby modifies the scheduling order as follows: Fact discovery shall be 17 completed by August 30, 2024; expert disclosures shall be completed by September 27, 2024; 18 rebuttal expert disclosures shall be completed by October 25, 2024; and all motions other than 19 motions for continuances, temporary restraining orders, or other emergency applications shall be 20 filed by no later than January 10, 2025. The court hereby sets a final pretrial conference for 21 June 10, 2025 at 1:30 PM before the undersigned by Zoom, and a jury trial set for August 11, 22 2025 at 9:00 AM in Courtroom 4. Moreover, within ten (10) days of the entry of appearance of 23 plaintiff’s new counsel, the parties shall either file a stipulation proposing an amendment of this 24 modified scheduling order or a notice that no further amendment is necessary. 25
3 The court notes defendants’ reasonable request that plaintiff be given 10 days to file either a 26 notice of appearance by its new counsel or a voluntary dismissal of this action in light of the 27 length of time plaintiff has already purportedly spent in finding new counsel and the age of this case. Out of an abundance of caution, the court instead elects to provide plaintiff fourteen days in 28 this regard. 1 CONCLUSION 2 For the reasons set forth above: 3 1. The motion to withdraw as counsel for plaintiff Nevada Fleet LLC filed by 4 attorney Brandon Claus Fernald (Doc. No. 175) is granted; 5 2. The ex parte application filed by attorney Fernald (Doc. No. 180) is denied as 6 moot; 7 3. The Clerk of the Court is directed to terminate attorney Brandon Claus Fernald as 8 the counsel of record in this action on behalf of plaintiff Nevada Fleet LLC; 9 4. Attorney Fernald shall comply with all obligations under Rule 1.16(e) of the 10 California Rules of Professional Conduct regarding release of a client’s papers and 11 property and return of unearned fees; 12 5. Within fourteen (14) days of the date of this order, plaintiff shall file either a notice 13 of appearance of its new counsel of record if it wishes to continue prosecuting this 14 action, or a notice of voluntary dismissal; 15 6. Plaintiff is warned that its failure to timely file a notice of appearance of counsel 16 will result in the dismissal of this action; 17 7. If plaintiff retains new counsel by the deadline set herein, then within ten (10) days 18 of the filing of new counsel’s notice of appearance, the parties shall either file a 19 stipulation proposing further amendment of the schedule established by this order 20 or a notice that no further amendment of the schedule is necessary; 21 8. The Clerk of the Court is directed to serve this order on plaintiff Nevada Fleet LLC 22 by mail to the following address: 23 Nevada Fleet, LLC c/o Tom Layton 24 29 Myrtle Beach Drive Henderson, Nevada 89074
26 IT IS SO ORDERED. 27 | Dated: _ July 8, 2024 Dal A. 2, Arye DALE A. DROZD 28 UNITED STATES DISTRICT JUDGE