Ramirez v. Cornerstone Building Brands, Inc.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CLAUDIA RAMIREZ, et al., No. 2:21-cv-01017-MCE-JDP 12 Plaintiffs, 13 v. MEMORANDUM AND ORDER 14 CORNERSTONE BUILDING BRANDS, INC., et al., 15 Defendants. 16

17 18 Presently before the Court are three Motions: (1) Blumenthal Nordrehaug 19 Bhowmik De Blouw LLP’s (“BNBD”) Amended Motion to Withdraw as Attorney for 20 Plaintiff LaJuan Dennis (“Dennis”), ECF No. 34; (2) Lawyers for Justice PC’s (“LFJ”) 21 Motion to Withdraw as Attorney for Plaintiff Claudia Ramirez (“Ramirez”), ECF No. 37; 22 and (3) Plaintiffs Esmeralda Lizbeth Mendez Lozano, Lilian Cabrera, Ana Rosa 23 Mendoza, Alicia Fernandez, Dulce Nieto, Rosa Hernandez, and Nathaniel Williams’ 24 (“Moving Plaintiffs”) Ex Parte Application for an Order Extending the Discovery Cutoff 25 Deadline, ECF No. 40. For the following reasons, both Motions to Withdraw as Attorney 26 are GRANTED, but Moving Plaintiffs’ Ex Parte Application is DENIED.1 27 1 Because oral argument would not have been of material assistance, the Court ordered these 28 matters submitted on the briefs. E.D. Local Rule 230(g). 1 ANALYSIS 2 3 A. Motions to Withdraw as Attorney 4 The withdrawal of counsel is governed by the requirements of Eastern District of 5 California Local Rule 182(d), which provides that an attorney may not withdraw, leaving 6 the client in propria persona, absent a noticed motion, appropriate affidavits, notice to 7 the client and all other parties who have appeared, and compliance with the Rules of 8 Professional Conduct of the State Bar of California. However, “[a] lawyer shall not 9 terminate a representation until the lawyer has taken reasonable steps to avoid 10 reasonably foreseeable prejudice to the rights of the client, such as giving the client 11 sufficient notice to permit the client to retain other counsel . . .” Cal. Professional 12 Conduct R. 1.16(d). Whether to grant leave to withdraw is subject to the sound 13 discretion of the Court and “may be granted subject to such appropriate conditions as 14 the Court deems fit.” E.D. Local Rule 182(d); Canandaigua Wine Co., Inc. v. Moldauer, 15 No. 1:02-cv-06599 OWW DLB, 2009 WL 89141, at *1 (E.D. Cal. Jan. 14, 2009). 16 Here, both BNBD and LFJ have properly noticed motions and provided notice to 17 Dennis, Ramirez, and all other parties appearing in this action in compliance with Local 18 Rule 182(d). Neither Dennis nor Ramirez have filed oppositions or otherwise responded 19 to the present Motions to Withdraw, and thus the Court construes their silence as 20 statements of non-opposition. Nevertheless, the Court will examine the basis for 21 withdrawal presented in each Motion. 22 1. BNBD’s Motion 23 Attorney Sergio J. Puche, on behalf of BNBD, previously filed a Motion to 24 Withdraw as Attorney for Dennis on September 22, 2022, claiming that Dennis refused 25 to respond to BNBD’s communications as of July 20, 2022. See ECF No. 28. However, 26 Dennis contacted Mr. Puche on September 27, 2022, and after a discussion, BNBD 27 “agreed to withdraw the Motion . . . and continue representation so long as [Dennis] 28 remained in communication.” Puche Decl., ECF No. 34-1 ¶ 8. BNBD subsequently 1 withdrew its first Motion to Withdraw on October 14, 2022. See ECF No. 31. Mr. Puche 2 states that between September 27 and October 9, 2022, Dennis remained in contact but 3 after that, Dennis ceased responding to any communications. Puche Decl., ECF 4 No. 34-1 ¶ 9. 5 California Rule of Professional Conduct 1.16(b)(4) provides that counsel may 6 withdraw if the client “renders it unreasonably difficult for the lawyer to carry out the 7 representation effectively.” See Puche Decl., ECF No. 34-1 ¶ 11 (“By refusing to 8 communicate with me and/or anyone at BNBD, it is not possible for our firm to carry out 9 the employment effectively as mutual communication is a necessary, fundamental and 10 unavoidable requirement of effective representation.”). Dennis’ refusal to communicate 11 with his counsel clearly does not stem from a change in contact information given that he 12 reached out to counsel after the first Motion to Withdraw was filed. Furthermore, BNBD 13 informed Dennis that continued representation would depend on Dennis remaining in 14 contact. Given the foregoing and Dennis’ knowledge of counsel’s prior attempt to 15 withdraw from representation based on a failure to communicate, the Court thus finds 16 that BNBD has shown good cause for the withdrawal. Additionally, a review of the 17 docket reveals nothing indicating that withdrawal might prejudice Dennis, i.e., there are 18 no pending dispositive motions, imminent trial date, or other apparent deadlines that 19 should prevent BNBD’s withdrawal. Accordingly, BNBD’s Motion to Withdraw as 20 Attorney for Dennis is GRANTED. 21 2. LFJ’s Motion 22 Like BNBD and Dennis above, LFJ seeks to withdraw its representation of 23 Ramirez due to her failure to respond to counsel’s communications. See Silva Decl., 24 ECF No. 37-1 ¶ 4. Attorney Jacquelyn Silva states that Ramirez has not responded to 25 any communication since July 18, 2022, including emails, voicemail, regular mail, and 26 overnight mail. Id. ¶ 9 (informing Ramirez on September 2 and October 18, 2022, that “if 27 she did not respond to [their] communications, [LFJ] would have no choice but to ask the 28 Court to be relieved as her counsel for her failure to respond to [their] communications.”). 1 Pursuant to California Rule of Professional Conduct 1.16(b)(4), the Court finds good 2 cause for LFJ’s withdrawal. Ramirez has been afforded adequate time to communicate 3 with her counsel or file an opposition to the present Motion but has failed to do so. As 4 previously mentioned, there are no apparent deadlines in this case preventing LFJ’s 5 withdrawal. Therefore, LFJ’s Motion to Withdraw as Attorney for Ramirez is GRANTED. 6 B. Ex Parte Application to Extend Discovery Cutoff Deadline 7 Through the present Ex Parte Application, Moving Plaintiffs seek to extend the 8 discovery deadline, which expired on January 5, 2023, by six months, for the following 9 reasons: 10 Important pre-certification discovery remains outstanding which is directly relevant to Plaintiffs’ theories of liability, and 11 which is critical to establishing that Plaintiffs’ claims are suitable for class treatment. Moreover, the parties have been 12 engaged in informal exchange of documents and information due to active discussions regarding settlement and attempting 13 to reach a resolution of this action. Additionally, Plaintiffs anticipate[] conducting further discovery once Defendants file 14 their Opposition to Plaintiffs[’] Motion for Class Certification, considering Defendants often time provide additional 15 evidence, declarations, testimony that will need to be further examined prior to Plaintiffs filing their Reply in Support of their 16 Motion for Class Certification. . . . [T]here are significant outstanding issues to be addressed regarding Defendants’ 17 October 7, 2021 responses to Plaintiff[s’] initial written discovery—that were placed on hold for the sake of efficiency 18 and to avoid costs pending mediation and settlement discussions—including Defendants’ refusal to produce class 19 contact information and sampling of time and wage records. 20 ECF No. 40, at 3–4. Defendants oppose any further extension of the discovery 21 deadline, arguing that Moving Plaintiffs have not demonstrated good cause to support 22 such a lengthy extension. See generally ECF No. 42. 23 Generally, the Court is required to enter a pretrial scheduling order within 90 days 24 of service of the complaint. Fed. R. Civ. P. 16(b). The scheduling order “controls the 25 course of the action” unless modified by the Court. Fed. R. Civ. P. 16(d). Orders 26 entered before the final pretrial conference may be modified upon a showing of “good 27 cause,” Fed. R. Civ. P. 16(b), but “[t]he court may modify the order issues after a final 28 /// 1 pretrial conference only to prevent manifest injustice.” Fed. R. Civ. P. 16(e); see also 2 Johnson v. Mammoth Recreations, 975 F.2d 604, 608 (9th Cir. 1992). 3 Federal Rule of Civil Procedure 16(b)’s “good cause” standard primarily considers 4 the diligence of the party seeking the amendment.2 Id. at 609. The district court may 5 modify the pretrial schedule “if it cannot reasonably be met despite the diligence of the 6 party seeking the extension.” Id.; Fed. R. Civ. P. 16 advisory committee's notes (1983 7 amendment). Moreover, carelessness is not compatible with a finding of diligence and 8 offers no reason for a grant of relief. Johnson, 975 F.2d at 609. “Although the existence 9 or degree of prejudice to the party opposing the modification might supply additional 10 reasons to deny a motion, the focus of the inquiry is upon the moving party’s reasons for 11 seeking modification.” Id. (citing Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 12 141 (D. Me. 1985)). If the moving party was not diligent, the Court’s inquiry should end. 13 Id. 14 The Court finds that Moving Plaintiffs have not established good cause to extend 15 the discovery deadline. Moving Plaintiffs claim that, “given the discovery cutoff deadline 16 quickly approaching and the current state of discovery, it will be impossible for Plaintiffs 17 to complete the necessary investigation to properly prepare for their dispositive motions, 18 including Plaintiffs’ Motion for Class Certification, before the discovery cutoff deadline.” 19 ECF No. 40, at 15. However, Defendants removed this action from state court on June 20 8, 2021, and following consolidation of the two actions, this Court granted the parties’ 21 stipulation to extend the discovery cut-off date to January 5, 2023, which means the 22 parties have had over 19 months to conduct discovery. See ECF Nos. 1, 21, 25. The 23 suggestion that it is “impossible” to complete necessary discovery within that timeframe 24 is simply far-fetched. 25 Moving Plaintiffs also argue that Defendants’ responses to their initial discovery 26 requests, which Defendants served on October 7, 2021, “included largely objection-only 27 and non-code compliant responses,” and that Moving Plaintiffs “have not obtained class-

28 2 All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure. 1 contact information, even though they requested such information as a part of formal 2 discovery.” ECF No. 40, at 11, 15. If true, then Moving Plaintiffs should have filed a 3 motion to compel with the assigned magistrate judge. See Initial Pretrial Scheduling 4 Order, ECF No. 2, at 2 (stating that “completed” discovery, in part, means “any disputes 5 relative to discovery shall have been resolved by appropriate order if necessary and, 6 where discovery has been ordered, the order has been obeyed.”). In any event, 7 Defendants served the purportedly defective responses back in October 2021, but 8 Moving Plaintiffs waited until December 30, 2022, (over a year later, just three business 9 days before the close of discovery, and right before the New Year holiday) to raise “the 10 numerous outstanding discovery issues to be addressed” with Defendants. ECF No. 40, 11 at 12–13; see Ex. A–B, Silva Decl., ECF Nos. 40-2, 40-3 (email timestamped at 10:09 12 p.m. on December 30, 2022, with an attached letter requesting “Defendants withdraw 13 their unsupported objections and provide supplemental responses and responsive 14 documents.”). “Raising multiple discovery issues at the eleventh-hour violates the 15 scheduling order and is a further ground for denial of Plaintiffs’ ex parte application.” 16 Poulos v. City of L.A., No. 2:19-cv-00496-MWF-AFMx, 2020 WL 5210958, at *3 (C.D. 17 Cal. June 10, 2020). 18 Moving Plaintiffs’ primary contention is that formal discovery was put on hold 19 while the parties explored settlement negotiations and mediation. For example, Moving 20 Plaintiffs’ counsel states that, “in order to conserve costs, the Parties agreed to set aside 21 formal discovery efforts and to focus on the exchange of informal discovery for the 22 purpose of attending mediation.” Silva Decl., ECF No. 40-1 ¶ 4; but see Moreshead 23 Decl., ECF No. 42-1 ¶ 19 (declaration from defense counsel) (“The parties never agreed 24 to stay formal discovery in order to pursue settlement.”). Mediation occurred on March 25 3, 2022, but the parties were unable to reach a resolution. Silva Decl., ECF No. 40-1 26 ¶ 5. Moving Plaintiffs state that following the unsuccessful mediation, “[i]n order to 27 preserve resources on behalf of the Parties and the Court, Plaintiffs did not move 28 forward with further formal discovery efforts.” ECF No. 40, at 9. Lastly, Moving Plaintiffs’ 1 counsel claims that post-mediation, there were other attempts at resolution, including 2 three telephone calls in which the parties expressed a willingness to settle and resolve 3 the matter as well as purported discussions with the mediator. See Silva Decl., ECF 4 No. 40-1 ¶¶ 7–8. However, at no time did the parties stipulate or move to stay the 5 discovery deadline pending mediation or settlement discussions. Absent such a 6 stipulation or order, Moving Plaintiffs should have simultaneously engaged in both 7 discovery and settlement negotiations with Defendants. 8 Overall, the Court finds that Moving Plaintiffs were not diligent in seeking 9 modification of the scheduling order and thus have failed to show good cause under 10 Rule 16(b). Moving Plaintiffs’ concern that it cannot file an adequate motion for class 11 certification or reply in support of said motion is unfounded given that this case has been 12 ongoing for over 19 months and that they did not seek any form of relief from this Court 13 until the last minute. Therefore, Plaintiffs’ Ex Parte Application is DENIED. 14 15 CONCLUSION 16 17 Based on the foregoing, the Court orders the following: 18 1. BNBD’s Amended Motion to Withdraw as Attorney for Dennis, ECF No. 34, 19 is GRANTED. BNBD is relieved as counsel of record for Plaintiff Dennis effective upon 20 the filing of proof of service of this Memorandum and Order on Dennis at his last known 21 address: LaJuan Dennis 22 3336 Broken Branch Ct., Apt. 109 Sacramento, CA 95834 23 24 All communications to Dennis, now acting pro se in this case, shall be directed to him at 25 the contact information listed above unless and until he retains new counsel of record. 26 /// 27 /// 28 /// 4 2. LFJ’s Motion to Withdraw as Attorney for Ramirez, ECF No. 37, is 2 | GRANTED. LF. is relieved as counsel of record for Plaintiff Ramirez effective upon the 3 | filing of proof of service of this Memorandum and Order on Ramirez at her last known 4 | address: Claudia Ramirez 3825 Littlerock Dr. #41 6 Antelope, CA 95843

7 | All communications to Ramirez, now acting pro se in this case, shall be directed to her at 8 | the contact information listed above unless and until she retains new counsel of record. 9 3. Not later than thirty (30) days from the date this Memorandum and Order is 10 | electronically filed, Dennis and Ramirez shall each notify the Court whether they intend 11 | to proceed with this case and if so, whether they have been able to obtain new counsel 12 | or whether they intend to proceed pro se. Failure to comply with this order may result in 13 | dismissal of this action as to Dennis and/or Ramirez only. 14 4. The Clerk of Court is directed to terminate all counsel of record for Plaintiffs 15 | Dennis and Ramirez from the docket. Dennis and Ramirez shall be substituted in to 16 | proceed pro se. 17 5. Moving Plaintiffs’ Ex Parte Application for an Order Extending the 18 | Discovery Cutoff Deadline, ECF No. 40, is DENIED. 19 IT |S SO ORDERED. 20 | Dated: February 3, 2023 Mater LEK Whig { AX Xo - 22 SENIOR UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28