Henneberry v. City of Newark ( 2022 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOHN PATRICK HENNEBERRY, Case No. 13-cv-05238-TSH 8 Plaintiff, ORDER GRANTING MOTION TO 9 v. WITHDRAW AS COUNSEL WITH CONDITIONS 10 CITY OF NEWARK, et al., Re: Dkt. No. 368 11 Defendants. 12 13 I. INTRODUCTION 14 Counsel from Durie Tangri LLP, appointed by this Court to represent Plaintiff John 15 Henneberry, has filed a motion to withdraw as counsel. ECF No. 368. No opposition has been 16 filed. The Court finds this matter suitable for disposition without oral argument and VACATES 17 the January 19, 2023 hearing. See Civ. L.R. 7-1(b). Having considered the record in this case and 18 relevant legal authority, the Court GRANTS the motion for the following reasons. 19 II. BACKGROUND 20 On October 25, 2018, Mr. Henneberry accepted the Court’s offer to refer this matter to the 21 Federal Pro Bono Project, run by the Justice & Diversity Center of the Bar Association of San 22 Francisco. ECF No. 201. On November 1, 2018, the Court appointed Durie Tangri as pro bono 23 counsel. ECF No. 204. By that point in the case, the Court had issued rulings on summary 24 judgment and motions in limine, and the parties and the Court were in the process of scheduling 25 trial. 26 In mid-2019, the Supreme Court issued its decision in Nieves v. Bartlett, 139 S. Ct. 1715 27 (2019), and the Court ordered Defendants to file a renewed motion for summary judgment. ECF 1 Defendants’ renewed motion. ECF No. 232. Later that month, trial was set for March 16, 2020. 2 ECF No. 234. However, on March 11, 2020, less than a week before trial, the Court vacated the 3 March 16 trial date due to the COVID-19 pandemic. ECF No. 279. Trial was then set for May 9, 4 2022. On May 7, 2022, two days before trial, the Court vacated the May 9 trial date due to 5 Plaintiff’s counsel’s testing positive for COVID-19. ECF Nos. 317 & 318. The case was 6 ultimately tried November 8, 2022 to November 10, 2022, when the parties delivered closing 7 arguments. On November 14, 2022, the Court declared a mistrial due to the jury being 8 deadlocked. ECF No. 349. 9 Durie Tangri filed the present motion on December 6, 2022, stating it “believes that 10 alternate representation may be better able to effectuate Mr. Henneberry’s goals.” Mot. at 3. 11 III. LEGAL STANDARD 12 The Court’s Civil Local Rules authorize an attorney to withdraw as counsel of record if: 13 (1) written notice has been given reasonably in advance to the client and all other parties in the 14 action; and (2) the attorney obtains leave of Court. Civ. L.R. 11-5(a). The conduct of counsel, 15 including seeking leave to withdraw from a case, is governed by the standards of professional 16 conduct required of members of the State Bar of California. Civ. L.R. 11-4(a)(1); see Nehad v. 17 Mukasey, 535 F.3d 962, 970 (9th Cir. 2008) (applying California Rules of Professional Conduct to 18 attorney withdrawal). 19 “Courts consider several factors when considering a motion for withdrawal, including: (1) 20 the reasons counsel seeks to withdraw; (2) the possible prejudice that withdrawal may cause to 21 other litigants; (3) the harm that withdrawal might cause to the administration of justice; and (4) 22 the extent to which withdrawal will delay resolution of the case.” Atkins v. Bank of Am., N.A., 23 2015 WL 4150744, at *1 (N.D. Cal. July 9, 2015) (citing Deal v. Countrywide Home Loans, 2010 24 WL 3702459, at *2 (N.D. Cal. Sept. 15, 2010)). “When addressing a motion to withdraw, the 25 consent of the client is not dispositive.” Robinson v. Delgado, 2010 WL 3259384, at *2 (N.D. 26 Cal. Aug. 18, 2010) (citing CE Resource, Inc. v. Magellan Group, LLC, 2009 WL 3367489, at *2 27 (E.D. Cal. Oct.14, 2009)). Instead, the decision to permit counsel to withdraw is within the sound 1 Before withdrawal is permitted, counsel must comply with California Rule of Professional 2 Conduct 1.16(d), which provides that withdrawal is not permitted until the member has taken steps 3 to avoid reasonably foreseeable prejudice to the rights of the client, including giving sufficient 4 notice to the client to allow time for employment of other counsel, complying with Rule 1.16(e) 5 (regarding the return of all client materials and property), and complying with all other applicable 6 laws and rules. El Hage v. U.S. Sec. Assocs., Inc., 2007 WL 4328809, at *1 (N.D. Cal. Dec. 10, 7 2007). Further, “[w]hen withdrawal by an attorney from an action is not accompanied by 8 simultaneous appearance of substitute counsel or agreement of the party to appear pro se, leave to 9 withdraw may be subject to the condition that papers may continue to be served on counsel for 10 forwarding purposes . . . unless and until the client appears by other counsel or pro se.” Civ. L.R. 11 11-5(b). 12 IV. DISCUSSION 13 Based on the record in this case, the Court finds good cause exists to permit withdrawal. 14 As pro bono counsel, Durie Tangri has invested considerable time and resources in this matter. 15 Over four years ago, Durie Tangri was appointed as counsel for Mr. Henneberry after the Court 16 had ruled on dispositive motions and motions in limine. Since being appointed, Durie Tangri has 17 prepared fully for trial three separate times: first in March 2020, before trial was continued less 18 than a week before jury selection due to COVID-19; second in May 2022, before trial was 19 continued due to Plaintiff’s counsel’s testing positive for COVID-19; and third in November 2022, 20 when a three-day trial ended in a hung jury. Durie Tangri now states it believes alternate 21 representation may be better able to effectuate Mr. Henneberry’s goals in this case. Under 22 California Rule of Professional Conduct 1.16(b)(10), withdrawal is permitted if the lawyer 23 believes in good faith that the tribunal will find the existence of good cause for withdrawal. 24 The Court recognizes that Durie Tangri’s withdrawal potentially may leave Mr. 25 Henneberry without an attorney, and the Pro Bono Project has informed the Court that it does not 26 have the resources to place a case more than once. This alone does not provide grounds for 27 denying Durie Tangri’s motion to withdraw. See Hunter v. Sokoloff, 2019 WL 5655013, at *3 1 a breakdown in the attorney-client relationship occurred, even though the plaintiff might not be 2 able to secure further representation); Max v. Hernandez, 2007 WL 2990086, at *1 (S.D. Cal. Oct. 3 11, 2007) (finding that “counsel became involved in this case upon request from the San Diego 4 Volunteer Lawyers Program, and it is doubtful whether Plaintiff, a state prisoner, will be able to 5 secure further representation” but granting counsel’s motion to withdraw and finding that 6 “Plaintiff will not be unduly prejudiced if he has to proceed pro se. Numerous state prisoners 7 represent themselves in section 1983 actions in this court.”). The Court also recognizes that 8 pretrial matters, including discovery and dispositive motions, are now closed, and all that remains 9 is to schedule a new trial. However, courts have permitted counsel to withdraw in similar 10 circumstances despite the close proximity of trial. See Hunter, 2019 WL 5655013, at *3; Anhing 11 Corp. v. Thuan Phong Co. Ltd., 2014 WL 12591456, at *1–2 (C.D. Cal. Dec. 2, 2014) (granting 12 counsel’s motion to withdraw where the attorney-client relationship had broken down, despite trial 13 being scheduled to begin less than two months after counsel first moved to withdraw and only two 14 weeks after the court granted the motion to withdraw) (collecting cases). 15 Finally, the Court finds Durie Tangri has complied with the requirements of Civil Local 16 Rule 11-5(a) and the California Rules of Professional Conduct because counsel provided 17 reasonable advance notice to Mr. Henneberry of their intention to withdraw as counsel of record 18 and provided him time to obtain substitute counsel. See Hunter, 2019 WL 5655013, at *3 (finding 19 counsel “took steps to avoid reasonably foreseeable prejudice to Mr. Hunter’s rights by notifying 20 him nearly two months ago that it would not be willing to litigate the matter given Mr. Hunter’s 21 instructions, providing him with all of his case-related materials, and giving him time to file a 22 written opposition to its motion.”); Steshenko v. McKay, 2014 WL 4352086, at *2 (N.D. Cal. Sept. 23 2, 2014) (finding counsel took reasonable steps to avoid prejudice by properly noticing its motion 24 to withdraw, providing the plaintiff with all case-related material, allowing the plaintiff time to 25 respond to the motion, and noticing a hearing where the plaintiff could be heard). 26 V. CONCLUSION 27 For the reasons stated above, the Court GRANTS Durie Tangri’s Motion to Withdraw as 1 the withdrawal and no substitution of counsel has been filed on his behalf, the motion is granted 2 || onthe condition that Durie Tangri remain counsel of record to forward all filed documents from 3 || the parties or the Court on Mr. Henneberry until (1) he files a notice that he will be representing 4 || himself and providing an address for service of process or (2) a substitution of counsel is filed. 5 See Civ. L.R. 11-5(b). For all such documents, Durie Tangri shall file proof of service within 6 || three business days of filing. The Court VACATES the January 19, 2023 trial scheduling 7 conference, which will be rescheduled after Mr. Henneberry files a notice that he intends to 8 || represent himself or a substation of counsel. 9 As Mr. Henneberry is now proceeding pro se, the Court directs his attention to the 10 || Handbook for Litigants Without a Lawyer, which is available at the Clerk’s Office or online at 11 http://cand.uscourts.gov/prosehandbk. IT IS SO ORDERED. |! Dated: December 21, 2022 AY \ . Lj THOMAS S. HIXSON = 16 United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28