DeRosa v. Bayer HealthCare Pharmaceuticals, Inc. ( 2019 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GILBERTO LOPEZ, Case No. 19-cv-02932-HSG 8 Plaintiff, ORDER DISMISSING THE CASE FOR FAILURE TO PROSECUTE AND 9 v. ORDER GRANTING PLAINTIFF COUNSEL’S MOTION TO 10 BAYER HEALTHCARE WITHDRAW AS ATTORNEY PHARMACEUTICALS, INC., et al., 11 Re: Dkt. No. 33 Defendants. 12 13 I. FAILURE TO PROSECUTE 14 Plaintiffs Tatsiana DeRosa, Tamara Tyler, Gilberto Lopez, and Bonnie Wheeler filed this 15 action in California Superior Court on April 24, 2019. Dkt. No. 1. Defendants removed the action 16 on May 28, 2019, on the basis of diversity. Id. On October 24, 2019, Plaintiffs DeRosa, Tyler, 17 and Wheeler dismissed all their claims against Defendants with prejudice. Dkt. No. 34. Only 18 Plaintiff Lopez remains. 19 Plaintiff’s counsel, Levi M. Plesset of Milstein Jackson Fairchild & Wade, LLP, moved to 20 withdraw as Plaintiff Lopez’s attorney on October 23, 2019. Dkt. No. 33. Counsel first notified 21 Plaintiff Lopez of his intent to withdraw on October 2, 2019, and again on October 16, 2019. Id. 22 The Court set a hearing on this motion for December 5, 2019, and directed counsel to inform 23 Plaintiff Lopez that he should appear at the hearing if he opposed counsel’s motion to withdraw. 24 Dkt. No. 38. Plaintiff Lopez did not appear at the hearing. Counsel represented to the Court that 25 he served the Court’s order directing Plaintiff Lopez to appear, but he has not received any 26 response or communications from Plaintiff. The Court has no way of verifying whether Plaintiff 27 Lopez intends to continue prosecuting this case, as there has been no communication from Mr. 1 Federal Rule of Civil Procedure 41(b) provides that where a “plaintiff fails to prosecute or 2 to comply with these rules or a court order, a defendant may move to dismiss the action or any 3 claim against it.” Fed. R. Civ. P. 41(b). The Court may also sua sponte dismiss a case for lack of 4 prosecution. Link v. Wabash R. Co., 370 U.S. 626, 630-31 (1962). The Court finds that Plaintiff 5 Lopez has demonstrated that he is unable or unwilling to adequately prosecute this case. 6 Accordingly, the Court DISMISSES this action as to Plaintiff Lopez WITHOUT PREJUDICE 7 under Rule 41(b) for failure to prosecute. 8 II. MOTION TO WITHDRAW AS ATTORNEY (DKT. NO. 33) 9 The Court next addresses counsel’s motion to withdraw as attorney for Plaintiff Lopez. 10 Dkt. No. 33. Counsel represents that he has “repeatedly called and sent correspondence to 11 communicate with Plaintiff,” but Plaintiff Lopez has “shut down any meaningful attorney-client 12 interaction.” Id. Counsel notified Plaintiff on two occasions of his intention to withdraw. Id. At 13 the December 5, 2019 hearing, counsel represented that he has not received a response from 14 Plaintiff Lopez. Because Plaintiff Lopez did not appear at the hearing, it is unclear to the Court 15 whether Plaintiff Lopez opposes the motion. 16 In this district, “[c]ounsel may not withdraw from an action until relieved by order of 17 Court after written notice has been given reasonably in advance to the client and to all other 18 parties who have appeared in the case.” Civil L.R. 11-5(a). Moreover, “[w]hen withdrawal by an 19 attorney from an action is not accompanied by simultaneous appearance of substitute counsel or 20 agreement of the party to appear pro se, leave to withdraw may be subject to the condition that 21 papers may continue to be served on counsel for forwarding purposes, unless and until the client 22 appears by other counsel or pro se.” Civil L.R. 11-5(b). 23 Withdrawal is also governed by the California Rules of Professional Conduct. See j2 24 Glob. Commc’ns, Inc. v. Blue Jay, Inc., No. C 08-4254PJH, 2009 WL 464768, at *1 (N.D. Cal. 25 Feb. 24, 2009)). Under these rules, permissive withdrawal may be granted only by leave of the 26 Court. CA ST RPC, Rule 3-700(A)(1). The rules provide for permissive withdrawal on various 27 grounds. Id., Rule 3-700(C)(1). But an attorney may not withdraw before he or she “has taken 1 giving due notice to the client, allowing time for employment of other counsel, complying with 2 || rule 3-700(D), and complying with applicable laws and rules.” Jd., Rule 3-700(A)(2); see also id., 3 Rule 3-700(D) (regarding the refund of fees and the release of property and papers). 4 More broadly, courts assessing a motion to withdraw engage in a balancing of the equities, 5 || considering such factors as why counsel seeks to withdraw and whether permitting withdrawal 6 || may prejudice other litigants, harm the administration of justice, or delay the case’s resolution. 7 See Robinson v. Delgado, No. CV 02-1538 NJV, 2010 WL 3259384, at *2 (N.D. Cal. Aug. 18, 8 2010) (citing cases). 9 The Court finds that Civil Local Rule 11-5(a) is satisfied here. Plaintiffs counsel filed the 10 || motion almost two months ago and gave Plaintiff Lopez advance notice of withdrawal weeks 11 before the filing of the motion. See Dkt. No. 33. Based upon the discussion at the hearing, the 12 || Court is persuaded that Plaintiffs counsel filed the motion with a good faith belief that there is 5 13 good cause for withdrawal. See CA ST RPC, Rule 3-700(C)(6). Accordingly, the Court finds in 14 the exercise of its discretion that withdrawal is warranted. See Gong v. City of Alameda, No. C 3 15 || 03-05495 THE, 2008 WL 160964, at *1 (N.D. Cal. Jan. 8, 2008). The Court GRANTS the a 16 || motion to withdraw as counsel. 2 17 || 1. CONCLUSION Z 18 The Court GRANTS Plaintiff counsel’s motion to withdraw as attorney. See Dkt. No. 33. 19 Further, the Court DISMISSES this action WITHOUT PREJUDICE with respect to Plaintiff 20 || Lopez for failure to prosecute under Rule 41(b). The Clerk shall close the file. Plaintiff Lopez’s 21 former counsel is directed to forward this order to him. 22 23 IT IS SO ORDERED. 24 || Dated: 12/16/2019 HAYWOOD S. GILLIAM, JR. 26 United States District Judge 27 28