Perez v. Delta Packing Company of Lodi ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALEJANDRA PEREZ, et al., No. 2:19-cv-02228-DAD-JDP 12 Plaintiff, 13 v. ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL OF RECORD 14 DELTA PACKING COMPANY OF FOR PLAINTIFFS MARTIN MENDOZA LODI, et al., CARRILLO AND MIGUEL ANDRES 15 Defendants. (Doc. No. 43) 16 17 This matter is before the court on the motion to withdraw as counsel of record for two of 18 the eleven remaining1 named plaintiffs (Martin Mendoza Carrillo and Miguel Andres) filed by 19 attorneys Stanley Mallison, Hector Rodriguez Martinez, and Gonzalo Quezada, Jr., on April 24, 20 2023. (Doc. No. 43.) The pending motion was taken under submission on the papers on April 21 25, 2023. (Doc. No. 45.) For the reasons explained below, the court will grant the pending 22 motion to withdraw as counsel of record for plaintiffs Martin Mendoza Carrillo and Miguel 23 Andres. 24 BACKGROUND 25 On November 4, 2019, twelve named plaintiffs filed this putative wage and hour class 26 action against their employer defendant Delta Packing Company of Lodi (“Delta”) and three 27 1 On May 1, 2023, pursuant to a stipulation filed by the parties, the court dismissed plaintiff 28 Augusto Pablo Chales from this action. (Doc. No. 47.) 1 individual farm labor contractors (“the FLC defendants”) based on alleged violations of the 2 California Labor Code and the federal Migrant and Seasonal Agricultural Worker Protection Act. 3 (Doc. No. 1.) Throughout this litigation, the named plaintiffs have been represented by attorneys 4 from the law firm Mallison & Martinez (“the M&M firm”), including attorneys Stanley Mallison, 5 Hector Rodriguez Martinez, and Gonzalo Quezada, Jr., the only remaining attorneys of record for 6 plaintiffs. (See Doc. Nos. 20–22, 34.) 7 All defendants were timely served with the summons and complaint. (Doc. Nos. 7, 8, 9, 8 13.) Defendant Delta filed an answer to the complaint on February 12, 2020. (Doc. No. 10.) The 9 FLC defendants did not respond to the complaint. Plaintiffs’ counsel stated in a joint status report 10 filed with the court on March 20, 2020 that “[p]laintiffs anticipate seeking default judgment 11 against the [FLC] defendants in this matter.” (Doc. No. 14 at 3.) Despite this statement, 12 plaintiffs did not thereafter file a request for the entry of default nor a motion for default 13 judgment. Accordingly, the court will dismiss the FLC defendants due to plaintiffs’ failure to 14 prosecute this action as to those defendants. 15 On February 25, 2022, the parties filed a notice of settlement advising the court that “[t]he 16 parties are currently in the process of reducing their settlement to a written agreement and, upon 17 execution of that agreement, plaintiffs will request dismissal of this action.” (Doc. No. 24.) That 18 same day, the court issued an order vacating all dates in this matter and directing the parties to file 19 dispositional documents within twenty-one (21) days. (Doc. No. 25.) Based on representations 20 by plaintiffs’ counsel that they required additional time to obtain signatures from the named 21 plaintiffs, the parties requested and received several extensions of time in which to file 22 dispositional documents with the court, the latest of which set a filing deadline of August 15, 23 2022. (Doc. Nos. 26–28, 30–33, 35–37.) That deadline passed, and the parties did not timely file 24 dispositional documents, file a request a further extension of time, or otherwise communicate 25 with the court. 26 On August 25, 2022, this case was reassigned to the undersigned. (Doc. No. 38.) On 27 April 3, 2023, the court issued an order to plaintiffs requiring them to show cause why this case 28 should not be dismissed due to plaintiffs’ failure to prosecute. (Doc. No. 40.) In response, 1 plaintiffs’ counsel (attorney Hector Martinez) filed a declaration in which he explained that, 2 [g]iven the transient nature of the seasonal agricultural work Plaintiffs performed, [the M&M firm] has been entirely unable to 3 make contact with two Plaintiffs, namely Martin Mendoza and Miguel Andres (“non-responsive Plaintiffs”). Between May 31 and 4 June 2, 2022, [the M&M firm] sent letters to the non-responsive Plaintiffs at their last-known addresses, warning them that if they 5 failed to contact our office by June 8, 2022, that we would withdraw as their counsel. [The M&M firm] also made several 6 phone calls to these Plaintiffs which went unreturned. To date, since the commencement of settlement efforts, [the M&M firm] has 7 been unable to make contact with any of the above-identified non- responsive Plaintiffs. As a result of noncommunication, [the M&M 8 firm] will seek to be withdraw as counsel of record for Mr. Mendoza and Mr. Andres. 9 10 (Doc. No. 41 at ¶ 6.) Attorney Martinez explained further that of the twelve named plaintiffs, 11 nine plaintiffs have approved the settlement agreement, two plaintiffs have been non-responsive, 12 and the last plaintiff, Augusto Pablo Chales “informed M&M that he no longer wishes to continue 13 as a named plaintiff in this action” and “M&M will seek to dismiss Mr. Chales.” (Id. at ¶ 5–7.) 14 After the court set a deadline for the plaintiffs to seek dismissal of plaintiff Chales, on April 28, 15 2023, the parties filed a stipulation for the dismissal of plaintiff Chales, and the court dismissed 16 plaintiff Chales on May 1, 2023. (Doc. Nos. 46, 47.) 17 On April 24, 2023, plaintiffs’ counsel filed the pending motion to withdraw as counsel of 18 record for the non-responsive plaintiffs, Martin Mendoza Carrillo and Miguel Andres. (Doc. No. 19 43.) However, because plaintiffs’ counsel failed to comply with Local Rule 182(d), the court 20 issued a minute order on April 25, 2023 directing plaintiffs’ counsel to file a supplemental 21 declaration providing “the last known addresses of plaintiffs Martin Mendoza Carrillo and Miguel 22 Andres” and describing “their efforts to notify those plaintiffs of the motion to withdraw.” (Doc. 23 No. 44.) 24 On May 2, 2023, plaintiff’s counsel filed a supplemental declaration in support of their 25 motion to withdraw as counsel for plaintiffs Martin Mendoza Carrillo and Miguel Andres. (Doc. 26 No. 48.) Therein, attorney Martinez declared that the M&M firm sent letters to these plaintiffs on 27 May 31, 2022 directed to their last known addresses of 1207 South Madison Street, Stockton, 28 1 California 95206 and 215 North Airport Way, Stockton, California 95205, respectively. (Id. at ¶ 2 2.) In those letters, the M&M firm explained that they would request to withdraw as counsel of 3 record if these plaintiffs did not communicate with the M&M firm’s office by June 8, 2022. (Id.) 4 Attorney Martinez further declared that the M&M firm placed several calls to these plaintiffs, 5 which went unreturned, and these plaintiffs did not respond to the letters sent by counsel on May 6 31, 2022. (Id.) In addition, attorney Martinez declared that on April 26, 2023, the M&M firm 7 served a copy of the pending motion on these plaintiffs at their last known mailing addresses, and 8 to date, the M&M firm has not received any form of communication from these two plaintiffs. 9 (Id. at ¶ 3.) 10 LEGAL STANDARD 11 The decision to grant or deny an attorney’s motion to withdraw is ultimately committed to 12 the discretion of the trial court. “In ruling on a motion to withdraw as counsel, courts consider: 13 (1) the reasons why withdrawal is sought; (2) the prejudice withdrawal may cause to other 14 litigants; (3) the harm withdrawal might cause to the administration of justice; and (4) the degree 15 to which withdrawal will delay the resolution of the case.” Beard v. Shuttermart of Cal., Inc., No. 16 3:07-cv-00594-WQH-NLS, 2008 WL 410694, at *2 (S.D. Cal. Feb. 13, 2008) (citing Nat’l 17 Career Coll., Inc. v. Spellings, No. 1:07-cv-00075-HG-LK, 2007 WL 2048776, at *2 (D. Haw. 18 July 11, 2007)); see also CE Res., Inc. v. Magellan Grp., LLC, No. 2:08-cv-02999-MCE-KJM, 19 2009 WL 3367489, at *2 (E.D. Cal. Oct. 14, 2009) (noting that “[u]ltimately, the court’s ruling 20 must involve a balancing of the equities”). 21 In addition to consideration of these factors, withdrawal of counsel is governed by the 22 Local Rules of this court where, as here, withdrawal of counsel would leave the client 23 unrepresented. In this regard, Local Rule 182(d) provides: 24 Unless otherwise provided herein, an attorney who has appeared may not withdraw leaving the client in propria persona without 25 leave of court upon noticed motion and notice to the client and all other parties who have appeared. The attorney shall provide an 26 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 27 withdraw. 28 L.R. 182(d). Further, “[w]ithdrawal as attorney is governed by the Rules of Professional Conduct 1 of the State Bar of California, and the attorney shall conform to the requirements of those Rules.” 2 Id. Rule 1.16 of the California Rules of Professional Conduct provides several grounds upon 3 which an attorney may seek to withdraw, including when: (i) the client’s conduct “renders it 4 unreasonably difficult for the lawyer to carry out the representation effectively”; and (ii) “the 5 client breaches a material term of an agreement with, or obligation, to the lawyer relating to the 6 representation, and the lawyer has given the client a reasonable warning after the breach that the 7 lawyer will withdraw unless the client fulfills the agreement or performs the obligation.” Cal. R. 8 Prof. Conduct 1.16(b)(4)–(5). However, representation shall not be terminated until the attorney 9 “has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, 10 such as giving the client sufficient notice to permit the client to retain other counsel.” Cal. R. 11 Prof. Conduct 1.16(d). 12 DISCUSSION 13 In the pending motion, the attorneys of the M&M firm request “to be relieved as counsel 14 for plaintiffs Martin Mendoza and Miguel Andres as M&M is unable to contact them, and they 15 have failed to respond to counsel’s efforts to establish contact.” (Doc. No. 43-1 at 2.) Plaintiffs’ 16 counsel argues that these two plaintiffs’ “failure to respond to M&M’s communications, or to 17 otherwise make contact with counsel’s office, make it not just unreasonably difficult but 18 impossible to carry out any effective representation.” (Id. at 3) (citing Cal. R. Prof. Conduct 19 1.16(b)(4)). 20 The court agrees that the failure of these two plaintiffs to communicate with their counsel 21 renders effective representation impossible under the circumstances. In addition, withdrawal of 22 counsel as to them will not cause prejudice to the other litigants in this case. To the contrary, 23 because counsel have negotiated a settlement agreement that they believe will benefit the other 24 plaintiffs in this case—an agreement that the responsive plaintiffs have agreed to and signed but 25 which has not been fully executed because the two non-responsive plaintiffs have not responded 26 to counsel’s efforts to obtain their signatures on the settlement agreement—withdrawal may 27 benefit the other litigants in this case. Finally, the court finds that withdrawal under these 28 circumstances will not harm the administration of justice or delay the resolution of this case; 1 indeed, withdrawal will enable the parties to proceed with effectuating their settlement 2 agreement. See Heath v. Google LLC, No. 15-cv-01824-BLF, 2018 WL 4237659, at *1–2 (N.D. 3 Cal. Sept. 5, 2018) (granting a motion to withdraw and concluding that “withdrawal as counsel in 4 this case will not cause any delay in the adjudication of this action” given that the non-responsive 5 plaintiffs had failed to respond to their counsel’s communications for several months). 6 For these reasons, the court will grant the pending motion to withdraw as counsel of 7 record for plaintiffs Martin Mendoza Carrillo and Miguel Andres. 8 The court will direct both plaintiff Martin Mendoza Carrillo and plaintiff Miguel Andres 9 to individually inform the court in writing within fourteen (14) days of the service of this order 10 whether he intends to continue prosecuting this action and, if so, whether he intends to obtain 11 substitute counsel or proceed pro se. Plaintiff Martin Mendoza Carrillo and plaintiff Miguel 12 Andres are warned that their failure to respond to the court’s order in this regard will result in 13 their dismissal from this action due to their failure to prosecute and failure to comply with the 14 court’s order. 15 CONCLUSION 16 For the reasons set forth above: 17 1. Plaintiffs’ counsel’s motion to withdraw (Doc. No. 43) is granted; 18 2. The Clerk of the Court is directed to terminate attorneys Stanley Mallison, Hector 19 Rodriguez Martinez, and Gonzalo Quezada, Jr., as the counsel of record for 20 plaintiffs Martin Mendoza Carrillo and Miguel Andres only; 21 3. Attorneys Stanley Mallison, Hector Rodriguez Martinez, and Gonzalo Quezada, 22 Jr., shall comply with all obligations under Rule 1.16(e) of the California Rules of 23 Professional Conduct regarding release of a client’s papers and property and return 24 of unearned fees; 25 4. Plaintiff Martin Mendoza Carrillo is substituted in pro se and is directed to comply 26 with the rules of this court; 27 5. Plaintiff Miguel Andres is substituted in pro se and is directed to comply with the 28 rules of this court; 1 6. Plaintiffs Martin Mendoza Carrillo and Miguel Andres are each directed to inform 2 the court within fourteen (14) days of service of this order whether he intends to 3 continue prosecuting this action and, if so, whether he intends to obtain new 4 counsel or represent himself. 5 7. Plaintiff Martin Mendoza Carrillo and plaintiff Miguel Andres are warned that 6 their failure to respond to the court’s order in this regard will result in their 7 dismissal from this action due to their failure to prosecute and failure to comply 8 with the court’s order; 9 8. The Clerk of the Court is directed to enter the following contact information as 10 plaintiff Martin Mendoza Carrillo’s address of record; 11 Martin Mendoza Carrillo 1207 South Madison Street 12 Stockton, CA 95206 13 9. The Clerk of the Court is directed to enter the following contact information as 14 plaintiff Miguel Andres’s address of record; 15 Miguel Andres 215 North Airport Way 16 Stockton, CA 95205 17 10. The Clerk of the Court is directed to serve this order on plaintiffs Martin Mendoza 18 Carrillo and Miguel Andres by mail; 19 11. Defendants Jonny Diaz Flores, Pablo Diaz Flores, and Luciano Diaz Bernabe are 20 dismissed from this action due to plaintiffs’ failure to prosecute their claims 21 brought against these named defendants; and 22 12. The Clerk of the Court is directed to update the docket to reflect that defendants 23 Jonny Diaz Flores, Pablo Diaz Flores, and Luciano Diaz Bernabe have been 24 terminated as named defendants in this action. 25 IT IS SO ORDERED. *° | Dated: _May 16, 2023 Da A. 2, el 27 UNITED STATES DISTRICT JUDGE 28