Sexton v. Mitratech Holdings, Inc.

Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 JOHN SEXTON, Case No.: 23-CV-375-W-BGS

14 Plaintiff, ORDER GRANTING ATTORNEY’S 15 v. MOTION TO WITHDRAW AS COUNSEL FOR PLAINTIFF 16 MITRATECH, INC., [DOC. 19] 17 Defendant. 18 19 20 On December 12, 2023, Gruenberg Law filed an ex parte application [Doc. 19] to 21 withdraw as attorney of record for Plaintiff John Sexton. On December 23, 2023, this 22 Court issued a briefing schedule on the application. (See Order [Doc. 20].) The Order 23 set January 12, 2024, as the deadline for Plaintiff to file an opposition, and January 19, 24 2024, for Gruenberg Law’s reply. (Id. at 2:17–18.) The Order also required Gruenberg 25 Law to file a declaration stating whether Plaintiff intends to oppose the application, 26 identifying the steps taken to ensure Plaintiff will not be prejudiced and confirming 27 Plaintiff received a copy of Order and application. (Id. at 2:11–16.) 28 1 On December 29, 2023, Josh D. Gruenberg filed a second declaration complying 2 with the Order. (See Gruenberg’s Second Decl. [Doc. 23].) To date, Plaintiff has not 3 filed an opposition or a request for additional time to oppose the application. 4 An attorney may not withdraw as counsel except by leave of court. Darby v. City 5 of Torrance, 810 F. Supp. 275, 276 (C.D. Cal. 1992); Civ.L.R. 83.3.f.3. “The grant or 6 denial of an attorney’s motion to withdraw in a civil case is a matter addressed to the 7 discretion of the trial court. . . .” Washington v. Sherwin Real Estate, Inc., 694 F.2d 8 1081, 1087 (7th Cir. 1982). Factors considered in evaluating the motion are “1) the 9 reasons why withdrawal is sought; 2) the prejudice withdrawal may cause to other 10 litigants; 3) the harm withdrawal might cause to the administration of justice; and 4) the 11 degree to which withdrawal will delay the resolution of the case.” CE Resource, Inc. v. 12 Magellan Group, LLC, No. 2:09-cv-2999-MCE-KJM, 2009 WL 3367489 at *2, 2009 13 U.S. Dist. LEXIS 100776 at *4–5 (E.D. Cal. Oct. 14, 2009) (citing Canandaigua Wine 14 Co., Inc. v. Moldauer, No. 1:02-cv-6599, 2009 WL 89141 at *1, 2009 U.S. Dist. LEXIS 15 43238 at *1 (E.D. Cal. Jan. 13, 2009)). Withdrawal of counsel is governed by the 16 standards of professional conduct required of members of the State Bar of California. 17 See Nehad v. Mukasey, 535 F.3d 962, 970 (9th Cir. 2008) (applying California Rules of 18 Professional Conduct to attorney withdrawal). 19 Here, Gruenberg Law seeks to withdraw under Rule 1.16(b)(5), which provides 20 that an attorney may withdraw if “the client breaches a material term of an agreement 21 with, or obligation, to the lawyer relating to the representation, and the lawyer has given 22 the client a reasonable* warning after the breach that the lawyer will withdraw unless the 23 client fulfills the agreement or performs the obligation[.]” (Ex Parte App. at 4:24–5:1.) 24 In support of its withdrawal, Gruenberg Law states that Plaintiff has breached his legal 25 services contract with the firm. (Gruenberg Decl. [Doc. 19-1] ¶¶ 2, 3.) Gruenberg Law 26 also contends that Plaintiff has engaged in “other conduct [that] has rendered it 27 unreasonably difficult… to carry out the representation effectively. In essence, there has 28 been a complete breakdown of the attorney-client relationship.” (Id. ¶ 3.) 1 Plaintiff has not opposed the ex parte application, and therefore does not dispute 2 || that he has breached the legal services contract or that there has been a complete 3 || breakdown of the attorney-client relationship. Additionally, Gruenberg represents that it 4 ||has served Plaintiff with the ex parte application, this Court’s Order and that Plaintiff 5 ||acknowledged receipt of those documents. (Gruenberg Second Decl. 2, 5.) 6 With regard to any prejudice to Plaintiff, Gruenberg Law has provided Plaintiff 7 || with notice of upcoming deadlines and has worked with Defendant’s attorneys to 8 ||continue discovery deadlines. (Gruenberg Second Decl. 4 3.) Although Gruenberg Law 9 || did not specifically address the other factors considered in evaluating a motion to 10 || withdraw, there is no dispute Defendant was served with the application (Gruenber Decl. 11 |} 7) and Order and has not filed an opposition. Additionally, in the Third Joint Motion to 12 || Amend the Scheduling Order filed on February 7, 2024, it appears the parties have 13 concluded all discovery except for Plaintiff's deposition. (See Jt. Mot. [Doc. 24] Jf 2, 5, 14 |/6, 10-13.) For these reasons, the Court finds there is nothing in the record suggesting 15 Gruenberg Law’s withdrawal will prejudice the other litigants in this matter, will 16 |{harm the administration of justice or unduly delay the resolution of this case. 17 For all the reasons set forth above, the Court GRANTS Gruenberg Law’s 18 || application to withdraw as attorney of record for Plaintiff John Sexton [Doc. 19] and 19 || ORDERS as follows: 20 e Gruenberg Law shall serve a copy of this order on Plaintiff John Sexton and 21 Defendants and shall file the proof of service. 22 e On or before February 15, 2024, Plaintiff John Sexton shall file a notice 23 with this Court listing the mailing address for service of process. 24 IT IS SO ORDERED. 25 ||Dated: February 8, 2024 \ 27 Hn. 1 omas J. Whelan 28 United States District Judge