(PC) Samaniego v. CDCR ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FERNANDO SAMANIEGO, No. 2:19-cv-2606 TLN KJN P 12 Plaintiff, 13 v. ORDER 14 CDCR, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding through co-counsel. On November 17, 2021, co- 18 counsel filed a joint motion to withdraw as counsel for plaintiff. Co-counsel Carbone declares 19 that on November 2, 2021, during a phone conversation, plaintiff terminated both counsels’ 20 representation, instructed them to immediately cease their representation on his behalf, and “that 21 he would handle his representation and/or obtain different counsel immediately.” (ECF No. 43 at 22 3.) Counsel Carbone followed up the conversation with written confirmation of such termination 23 by overnight courier, delivered on November 5, 2021, and asked plaintiff to return written 24 confirmation of such termination, but plaintiff has not done so, and also fails to accept or return 25 phone calls from either co-counsel. 26 Background 27 The instant action was filed by co-counsel Redmond and Carbone. The amended 28 complaint alleges that defendants failed to protect plaintiff from harm, and failed to intervene to 1 protect plaintiff from physical abuse or harm; plaintiff sustained serious and debilitating injuries 2 and was rendered a complete quadriplegic. Plaintiff was subsequently granted medical parole.1 3 A revised scheduling order issued on July 14, 2021. The discovery deadline is set for 4 April 11, 2022, and all pretrial motions, except motions to compel discovery, must be filed on or 5 before July 11, 2022. 6 Co-counsel Redmond’s motion to withdraw was denied without prejudice on November 7 17, 2021. 8 Legal Standards 9 Withdrawal of counsel is governed by the Rules of Professional Conduct of the State Bar 10 of California, and the Local Rules of Practice for the United States District Court, Eastern District 11 of California. See L.R. 182; L.S. v. Pan. Buena Vista Union Sch. Dist., 2012 WL 3236743, at *1, 12 2012 U.S. Dist. LEXIS 109707, at *3 (E.D. Cal. Aug. 6, 2012). Even with the client’s consent, 13 an attorney may not withdraw as counsel except with leave of court. L.R. 182(d), (3). In other 14 words, it is within the Court’s discretion whether to grant withdrawal. See Canandaigua Wine 15 Co., Inc. v. Moldauer, 2009 WL 89141, at *1, 2009 U.S. Dist. LEXIS 4238, at *2 (E.D. Cal. Jan. 16 13, 2009). “Factors the Court may consider include: (1) the reasons for withdrawal; (2) prejudice 17 that may be caused to other litigants; (3) harm caused to the administration of justice; and (4) 18 delay to the resolution of the case caused by withdrawal.” L.S. ex rel. R.S., 2012 U.S. Dist. 19 LEXIS 109707, 2012 WL 3236743, at *2 (citing Canandaigua, 2009 WL 89141, at *1-2, 2009 20 U.S. Dist. LEXIS 4238, at *4). 21 Discussion 22 The court is concerned whether plaintiff is in a position to represent himself or to obtain 23 replacement counsel. Therefore, plaintiff Samaniego shall file a written response to co-counsel’s 24 motion to withdraw. Even if plaintiff does not oppose the motion, he shall file a written response. 25 Plaintiff shall inform the court whether, should the court grant the motion to withdraw, plaintiff 26 intends to represent himself and, if so, how he has arranged to do so; or, if plaintiff intends to 27 28 1 Plaintiff’s last known address was 2511 W. Cedarwood Street, West Covina, CA 91790. 1 | retain replacement counsel, what steps plaintiff has taken to obtain replacement counsel. Plaintiff 2 || 1s cautioned that if he fails to respond to this order, he may be subject to sanctions, including a 3 || recommendation that this action be dismissed based on plaintiffs failure to respond to a court 4 || order. Fed. R. Civ. P. 41(b). 5 Following the submission of plaintiffs response, and co-counsel’s reply, if any, the court 6 || may set this motion for in camera hearing by Zoom. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Within thirty days plaintiff Samaniego shall file a written response to counsel’s motion 9 || to withdraw as set forth above. 10 2. The Clerk of the Court is directed to serve a copy of this order on plaintiff, Fernando 11 || Samaniego, 2511 W. Cedarwood Street, West Covina, CA 91790. 12 | Dated: November 22, 2021 i Aectl Aharon 14 jsama2606.wd.tb KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28