Lockhart v. Travelers Commercial Insurance Company ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DONALD LOCKHART and PATRICIA Case No. 1:21-cv-00268-DAD-SKO LOCKHART, 10 FINDINGS AND RECOMMENDATION Plaintiffs, THAT THE MOTION TO WITHDRAW 11 BE GRANTED v. 12 ORDER DENYING PLAINTIFF DONALD LOCKHART’S MOTION FOR 13 TRAVELERS COMMERCIAL INSURANCE EX PARTE EMERGENCY RELIEF COMPANY, 14 (Docs. 13 & 18) Defendant. 15 _____________________________________/ OBJECTIONS DUE: 14 DAYS 16 17 On March 30, 2021, Robert M. Moss, Esq. (“Attorney Moss”), attorney for Plaintiffs Donald 18 Lockhart and Patricia Lockhart (“Plaintiffs”), filed his “Motion to With Draw [sic] as Counsel for 19 Plaintiffs” (the “Motion to Withdraw”). (Doc. 13.) On March 31, 2021, the Motion to Withdraw 20 was referred to the undersigned for the preparation of findings and recommendations. (Doc. 15.) 21 By minute order entered that same day, the Court directed Plaintiffs and Defendant Travelers 22 Commercial Insurance Company (“Defendant”) to file their responses to the Motion by April 14, 23 2021. (Doc. 16.) 24 Defendant timely filed a statement of non-opposition. (Doc. 19.) On April 14, 2021, 25 Plaintiff Donald Lockhart (“Mr. Lockhart”) filed a “Motion for Emergency Ex Parte Hearing re 26 Attorney Withdrawal” (the “Motion for Emergency Ex Parte Hearing”), in which he asserts that 27 “[t]here are some circumstances surrounding the termination-resignation of Attorney Robert Moss 28 1 that need to be heard.”1 (Doc. 18.) The undersigned has reviewed the papers and finds the matter 2 suitable for decision without oral argument. The matter is therefore submitted on the papers. 3 Upon consideration of the Motion to Withdraw and supporting papers, and for the reasons 4 set forth below, the undersigned recommends that the Motion to Withdraw be granted and orders 5 that the Motion for Emergency Ex Parte Hearing be denied. 6 I. DISCUSSION 7 A. Motion to Withdraw 8 Attorney Moss has been the attorney of record for Plaintiffs since the start of the litigation 9 on November 17, 2020. (See Doc. 1 at 112; Doc. 13.) He moves to withdraw as counsel for Plaintiffs 10 because “Plaintiff Donald Lockhart has expressly terminated [Attorney Moss] as his attorney, in 11 writing. Plaintiff Donald Lockhart’s communication to [Attorney Moss] was purportedly not only 12 on his behalf but on behalf of his wife, Plaintiff Patricia Lockhart, as well.” (Doc. 13 at 2.) Attorney 13 Moss states that “[i]rreconcilable differences have emerged between [him] and Plaintiffs which 14 prevent [him] from further representing Plaintiffs such that withdrawal is necessary and mandatory 15 per California Rules of Professional Conduct.” (Id.) 16 Withdrawal of attorney is governed by Local Rule 182 of the Local Rules of the United 17 States District Court for the Eastern District of California (“Local Rules”) and the Rules of 18 Professional Conduct of the State Bar of California (“Rules of Professional Conduct”). See E.D. 19 Cal. L.R. 182(d). Local Rule 182(d) provides as follows: 20 Unless otherwise provided herein, an attorney who has appeared may not withdraw leaving the client in propria persona without leave of court upon noticed motion 21 and notice to the client and all other parties who have appeared. The attorney shall provide an affidavit stating the current or last known address or addresses of the 22 client and the efforts made to notify the client of the motion to withdraw. Withdrawal as attorney is governed by the Rules of Professional Conduct of the 23 State Bar of California, and the attorney shall conform to the requirements of those Rules. The authority and duty of the attorney shall continue until relieved by order 24 of the Court issued hereunder. Leave to withdraw may be granted subject to such appropriate conditions as the Court deems fit. 25 26 Id. Rule of Professional Conduct 1.16(a)(4) provides that an attorney shall withdraw from the 27 1 Any apparent dissatisfaction of Mr. Lockhart with Attorney Moss is not before the Court, although the Court notes 28 that a lack of opposition to the Motion to Withdraw may indicate such dissatisfaction. 1 representation of a client if the client discharges the lawyer. 2 As an initial matter, Attorney Moss has complied with Local Rule 182. He filed proofs of 3 service demonstrating that he mailed a copy of the motion and the Court’s minute order setting forth 4 the briefing schedule to Plaintiffs at their last known addresses. (Docs. 13, 17.) Next, the Motion 5 to Withdraw states that Plaintiffs have expressly terminated Attorney Moss as their counsel. (Doc. 6 13 at 2.) Therefore, withdrawal is mandatory under Rule of Professional Conduct 1.16(a)(4). 7 Accordingly, the undersigned recommends that the Motion to Withdraw be granted. 8 B. Motion for Ex Parte Emergency Relief 9 In addition to stating that the circumstances surrounding Attorney Moss’s “termination- 10 resignation” “need to be heard,” Mr. Lockhart’s Motion for Emergency Ex Parte Hearing raises 11 three other reasons why ex parte relief is necessary: Plaintiff Patricia Lockhart has requested to be 12 “withdrawn from the case because she has no interest in it”; Defendant is “pursuing dismissal with 13 points that remain categorically denied and even false”; and Mr. Lockhart’s request for alternative 14 dispute resolution (“ADR”) “has been ignored” by Attorney Moss and Defendant. (Doc. 18 at 2.) 15 “Ex parte applications are a form of emergency relief that will only be granted upon an adequate 16 showing of good cause or irreparable injury to the party seeking relief.” Moore v. Chase, Inc., No. 17 1:14–CV–01178–SKO, 2015 WL 4393031, at *4 (E.D. Cal. July 17, 2015) (quoting Clark v. Time 18 Warner Cable, No. CV–07–1797–VBF(RCx), 2007 WL 1334965, at *1 (C.D. Cal. May 3, 2007)). 19 Here, Mr. Lockhart has not met the standard for ex parte emergency relief based on his 20 asserted reasons. First, as noted above, any dissatisfaction Mr. Lockhart may have with Attorney 21 Moss is currently not before the Court. Second, Plaintiff Patricia Lockhart may voluntarily dismiss 22 her claims under Federal Rule of Civil Procedure 41(a)(1)(A)(i) without an order of Court because 23 Defendant has not served either an answer or a motion for summary judgment. See Fed. R. Civ. P. 24 41(a)(1)(A)(i). Third, Mr. Lockhart will have an opportunity to defend against any request for 25 dismissal by Defendant, should one be filed, in due course. Lastly, to the extent the parties wish to 26 proceed with ADR under the Local Rules, that procedure is set forth in Local Rule 271 and requires 27 stipulation reflecting the agreement of all parties. See E.D. Cal. L.R. 271(c)(3). Alternatively, Mr. 28 Lockhart is advised that, once the pleadings are settled, the Court intends to set a settlement 1 conference, as settlement conferences are mandatory in cases in which District Judge Dale A. Drozd 2 is assigned as the presiding judge. Accordingly, Mr. Lockhart has failed to demonstrate any 3 emergency or any likelihood of irreparable injury, and the Motion for Emergency Ex Parte Hearing 4 will be denied. 5 II. CONCLUSION 6 Based on the foregoing, the undersigned RECOMMENDS that the Motion to Withdraw 7 (Doc. 13) be GRANTED. 8 These findings and recommendation are submitted to the district judge assigned to this 9 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen (14) 10 days of service of this recommendation, any party may file written objections to these findings and 11 recommendations with the Court and serve a copy on all parties. The document should be captioned 12 “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge will review 13 the magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The 14 parties are advised that failure to file objections within the specified time may result in the waiver 15 of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 16 Further, it is hereby ORDERED that Mr. Lockhart’s Motion for Emergency Ex Parte 17 Hearing (Doc. 18) is DENIED. 18 IT IS SO ORDERED. 19 Sheila K. Oberto 20 Dated: April 20, 2021 /s/ . UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28