1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JESSIE ALI, Case No. 21-cv-02193-TSH

8 Plaintiff, ORDER GRANTING MOTION TO 9 v. WITHDRAW AS COUNSEL; ORDER DISMISSING CASE FOR FAILURE TO 10 CITY & COUNTY OF SAN FRANCISCO, PROSECUTE et al., 11 Re: Dkt. Nos. 31, 35 Defendants. 12 13 I. INTRODUCTION 14 On June 9, 2022, Stanley Goff filed a Motion to Withdraw as Counsel for Plaintiff Jessie 15 Ali. ECF No. 35. Plaintiff has not filed an opposition and did not appear at the August 4 hearing 16 on the matter. Defendants do not oppose Mr. Goff’s motion. ECF No. 43. Having considered the 17 record in this case and relevant legal authority, the Court GRANTS the motion for the following 18 reasons. The Court also DISCHARGES the May 13, 2022 show cause order (ECF No. 31) as to 19 Mr. Goff. Based on Plaintiff’s failure to prosecute, this case is DISMISSED WITHOUT 20 PREJUDICE.1 21 II. BACKGROUND 22 Plaintiff filed this

case on March 29, 2021, alleging Sheriff’s Deputy 23 Ruben Sanchez used excessive force against him while he was an inmate at County Jail #5 in San 24 Bruno. ECF No. 1. He named Sanchez and the City and County of San Francisco as defendants. 25 A. First Show Cause Order 26 Pursuant to the initial scheduling order, the parties’ joint case management statement was 27 1 due June 24, 2021. ECF No. 5. As the parties did not file a statement, the Court vacated the July 2 1 case management conference and ordered them to file a status report. ECF No. 12. In response, 3 Defendants filed a separate statement indicating their counsel called and emailed Mr. Goff to meet 4 and confer regarding initial disclosures and submitting a joint status report, but they did not hear 5 back from him. ECF No. 13. Plaintiff filed no response. Accordingly, the Court ordered Plaintiff 6 to show cause by July 15 why the case should not be dismissed for failure to prosecute and failure 7 to comply with court deadlines. ECF No. 14. 8 In response to the show cause order, Mr. Goff filed a response indicating Plaintiff was in 9 the process of either obtaining new counsel or representing himself in pro se. ECF No. 15. Based 10 on Mr. Goff’s declaration, the Court discharged the show cause order and scheduled a case 11 management conference on August 26. ECF No. 16. As part of its order, the Court reminded Mr. 12 Goff that unless Plaintiff filed a substitution of counsel or notice of intent to represent himself, Mr. 13 Goff had a duty to discharge his obligations to his client and the Court under Civil Local Rule 11- 14 4 and that, under Local Rule 11-5(a), he could not withdraw from the case until relieved by order 15 of Court after written notice had been given to Plaintiff. The Court warned Mr. Goff that failure to 16 comply with these obligations may result in the imposition of sanctions. 17 B. Second Order to Show Cause 18 The parties subsequently filed separate case management statements (ECF Nos. 20-21) and 19 the Court issued a scheduling order in which it referred the parties to another magistrate judge for 20 a settlement conference. ECF No. 26. The case was referred to Judge Jacqueline Scott Corley, 21 who scheduled a settlement conference to take place on May 10, 2022. ECF No. 27. However, on 22 April 19 Judge Corley vacated the settlement conference matter after Mr. Goff represented that he 23 did not have any contact with his client and was going to move to withdraw as. ECF No. 28. 24 Subsequently, on May 6 Defendants filed a discovery letter indicating they attempted to meet and 25 confer with Mr. Goff but were again unable to get a response. ECF No. 29. As such, the Court 26 ordered Mr. Goff to file a declaration by May 12 regarding his communication with his client, the 27 status of his representation, and his failure to respond to Defendants’ communication attempts. 1 After Mr. Goff failed to respond, the Court issued a second show cause order (1) directing 2 Plaintiff to show cause why the case should not be dismissed for failure to prosecute and failure to 3 comply with court deadlines and (2) directing Mr. Goff to show cause why he should not be 4 referred for disciplinary proceedings based on his failure to comply with his obligations to his 5 client and the Court. ECF No. 31. The Court directed Mr. Goff to serve the show cause order on 6 Plaintiff and file proof of service by May 17, 2022. 7 Mr. Goff did not file proof of service on his client; instead, he filed a response on May 24 8 indicating that “after filing the lawsuit for Plaintiff in this matter, it was conveyed to me that my 9 legal representation of the Plaintiff was no longer needed,” and that he would be filing a motion to 10 withdraw. ECF No. 32. Mr. Goff also stated that “all that I have is a phone number that belongs 11 to the Plaintiff, which is the only point of contact that I have for him. That I do not have an e-mail 12 or physical address to send Plaintiff the recent order issued by the Court in order to for me to file a 13 proof of service.” Finally, Mr. Goff stated that he failed to respond to the Court’s May 6 status 14 order “due to a family emergency that necessitated me taking a family member to emergency for 15 suffering from pneumonia and then having to care for the family member for over two weeks.” 16 Based on Mr. Goff’s response, the Court, out of concern that he was not fulfilling his 17 duties to both his client and the Court, issued an order for him to file a further declaration by June 18 2. ECF No. 33. It noted that Mr. Goff has known since at least July 15, 2021, the date he 19 responded to the first show cause order, that “Plaintiff Jessie Ali is in the process of either 20 obtaining new counsel or representing himself in pro se.” Mr. Goff also previously represented 21 that he intended to file a motion to withdraw as counsel, ECF No. 28, yet he had not done so. 22 Over ten months had passed since Mr. Goff first informed the Court that he would no longer 23 represent Plaintiff, yet he had made no effort to withdraw. Further, although Mr. Goff stated that 24 he has a phone number for Plaintiff, he did not state whether he attempted to call his client and 25 inform him of the show cause order or his intent to withdraw as counsel. Accordingly, the Court 26 ordered Mr. Goff to file a further declaration detailing: (1) the reason he had not moved to 27 withdraw from this case at any time since July 15, 2021; (2) his communication attempts with his 1 duration of attempts) between May 24 and June 2; and (4) if able to reach Plaintiff by phone, an 2 attestation that he informed his client of the status of the proceedings and the pending show cause 3 order, that he requested Plaintiff provide a physical address and/or e-email address, and that he 4 informed his client that he intends to file a motion to withdraw. ECF No. 33. The Court also 5 directed Mr. Goff to file a motion to withdraw as counsel by June 2. Pending Mr. Goff’s 6 response, the Court held the second show cause order in abeyance. 7 As of June 6, Mr. Goff had not filed a further declaration and had not filed a motion to 8 withdraw as counsel. As such, the Court scheduled a show cause hearing on June 16, giving 9 Plaintiff a “final opportunity” to show cause why this case should not be dismissed for failure to 10 prosecute and giving Mr. Goff a “final opportunity” to show cause why he should not be referred 11 for disciplinary proceedings. ECF No. 34. The Court also directed Mr. Goff to file a declaration 12 by June 9 attesting that (1) he attempted to serve the June 6 order and the Court’s previous orders 13 on Plaintiff; (2) he attempted to call Plaintiff and notify him of the Court’s show cause orders, 14 including a record of any calls he makes (with dates, times, and duration of attempts) between 15 May 24 and June 9; and (3) if able to reach Plaintiff, an attestation that he informed him of the 16 status of the proceedings and the show cause hearing scheduled for June 16. 17 C. Mr. Goff’s Declaration in Response and Motion to Withdraw 18 On June 10, 2022, Mr. Goff filed a response to the show cause order indicating he

19 has made one attempts [sic] twice a day by contacting people in the Tenderloin area of San Francisco, who the undersigned knows are 20 friends with the Plaintiff, putting the word out for the Plaintiff to get in touch with the undersigned. However, none of these individuals 21 had been in contact with the Plaintiff. On June 9th the undesigned [sic] called the phone number that Plaintiff had given the undersigned 22 when the case was first filed. Someone finally answered the phone. However, the person who answered the phone informed the 23 undersigned that the number did not belong to the Plaintiff and hung up on the undersigned. The undersigned does not have any other 24 means of communication with the Plaintiff in his possession and is unable to contact the Plaintiff. 25 26 ECF No. 36. Mr. Goff also filed a motion to withdraw as counsel for Plaintiff, stating that 27 “[i]rreconcilable differences between Plaintiff’s attorney and Plaintiff created conditions that has 1 Plaintiff’s counsel has not received a substitution of attorney, or the identity of any attorney with 2 whom to discuss this matter but can no longer continue representation and therefore has no choice 3 but to file this motion to withdraw.” ECF No. 35. 4 III. MOTION TO WITHDRAW 5 A. Legal Standard 6 The Court’s Civil Local Rules authorize an attorney to withdraw as counsel of record if: 7 (1) written notice has been given reasonably in advance to the client and all other parties in the 8 action; and (2) the attorney obtains leave of Court. Civ. L.R. 11-5(a). The conduct of counsel, 9 including seeking leave to withdraw from a case, is governed by the standards of professional 10 conduct required of members of the State Bar of California. Civ. L.R. 11-4(a)(1); see Nehad v. 11 Mukasey,

(9th Cir. 2008) (applying California Rules of Professional Conduct to 12 attorney withdrawal). 13 “Courts consider several factors when considering a motion for withdrawal, including: (1) 14 the reasons counsel seeks to withdraw; (2) the possible prejudice that withdrawal may cause to 15 other litigants; (3) the harm that withdrawal might cause to the administration of justice; and (4) 16 the extent to which withdrawal will delay resolution of the case.” Atkins v. Bank of Am., N.A., 17

, at *1 (N.D. Cal. July 9, 2015) (citing Deal v. Countrywide Home Loans, 2010

, at *2 (N.D. Cal. Sept. 15, 2010)). “When addressing a motion to withdraw, the 19 consent of the client is not dispositive.” Robinson v. Delgado,

, at *2 (N.D. 20 Cal. Aug. 18, 2010) (citing CE Resource, Inc. v. Magellan Group, LLC,

, at *2 21 (E.D. Cal. Oct.14, 2009)). Instead, the decision to permit counsel to withdraw is within the sound 22 discretion of the trial court. United States v. Carter,

(9th Cir. 2009). 23 Before withdrawal is permitted, counsel must comply with California Rule of Professional 24 Conduct 1.16(d), which provides that withdrawal is not permitted until the member has taken steps 25 to avoid reasonably foreseeable prejudice to the rights of the client, including giving sufficient 26 notice to the client to allow time for employment of other counsel, complying with Rule 1.16(e) 27 (regarding the return of all client materials and property), and complying with all other applicable 1 2007). Further, “[w]hen withdrawal by an attorney from an action is not accompanied by 2 simultaneous appearance of substitute counsel or agreement of the party to appear pro se, leave to 3 withdraw may be subject to the condition that papers may continue to be served on counsel for 4 forwarding purposes . . . unless and until the client appears by other counsel or pro se.” Civ. L.R. 5 11-5(b). 6 B. Analysis 7 Based on the record in this case, the Court finds good cause exists to permit Mr. Goff’s 8 withdrawal. California Rule of Professional Conduct 1.16 provides several enumerated grounds 9 under which counsel may properly seek to withdraw from representation, including when “the 10 client by other conduct renders it unreasonably difficult for the lawyer to carry out the 11 representation effectively.” Cal. Rule of Prof. Conduct 1.16(b)(4). Here, Mr. Goff has declared 12 that Plaintiff informed him in 2021 that his legal representation was no longer needed, he has been 13 unable to contact his client, and the only contact information he has for Plaintiff, a telephone 14 number, appears to no longer belong to Plaintiff. Given the irretrievable breakdown of 15 communication between Mr. Goff and his client, as well as Plaintiff’s failure to respond to this 16 motion, withdrawal is appropriate. See Tabak v. Apple, Inc.,

, at *2 (N.D. Cal. 17 Dec. 9, 2021) (granting withdrawal under Rule 1.16(b)(4) due to “breakdown in communication”); 18 Harman v. Ahern,

, at *2 (N.D. Cal. July 1, 2015) (failure to communicate 19 constitutes good cause for withdrawal); Ortiz v. Freitas,

, at *2 (N.D. Cal. June 20 18, 2015) (“Mr. Ortiz’s failure to maintain regular contact with his counsel and cooperate in 21 moving the litigation forward constitutes good cause for withdrawal.”). 22 The Court also finds Mr. Goff has complied with California Rule of Professional Conduct 23 1.16(d), in that Defendants were provided sufficient notice of his intent to withdraw and filed a 24 statement of non-opposition, and Mr. Goff also attempted to provide notice to his client, who has 25 failed to maintain contact with him. Accordingly, the Court GRANTS Mr. Goff’s motion to 26 withdraw. The May 13, 2022 show cause order is DISCHARGED as to Mr. Goff. 27 1 IV. FAILURE TO PROSECUTE 2 A. Legal Standard 3 Under Rule 41(b), “the district court may dismiss an action for failure to comply with any 4 order of the court.” Ferdik v. Bonzelet,

(9th Cir. 1992); see also Oliva v. 5 Sullivan,

(9th Cir. 1992) (district court may dismiss sua sponte for failure to 6 meet court deadline). “The Court must weigh the following factors in determining whether a Rule 7 41(b) dismissal is warranted: “‘(1) the public’s interest in expeditious resolution of litigation; (2) 8 the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 9 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 10 sanctions.’” Omstead v. Dell, Inc.,

(9th Cir. 2010) (quoting Henderson v. 11 Duncan,

(9th Cir. 1986)). Dismissal is appropriate “where at least four 12 factors support dismissal . . . or where at least three factors ‘strongly’ support dismissal.” 13 Hernandez v. City of El Monte,

(9th Cir. 1998). 14 B. Analysis 15 The first two Henderson factors strongly support dismissal. First, “‘the public’s interest in 16 expeditious resolution of litigation always favors dismissal.’” Pagtalunan v. Galaza,

(9th Cir. 2002) (quoting Yourish v. Cal. Amplifier,

, 990 (9th Cir. 1999)). 18 Second, the Court’s need to manage its docket also weighs in favor of dismissal. Plaintiff has 19 delayed adjudication of the claims in this case multiple times by failing to file a case management 20 statement, failing to respond to the Court’s status and show cause orders, failing to appear at the 21 August 4 hearing, and failing to communicate with his attorney. Non-compliance with procedural 22 rules and the Court’s orders wastes “valuable time that [the Court] could have devoted to other . . . 23 criminal and civil cases on its docket.” Ferdik,

; Pagtalunan,

(“It 24 is incumbent upon the Court to manage its docket without being subject to routine noncompliance 25 of litigants”). 26 As for the third Henderson factor, the mere pendency of a lawsuit cannot constitute 27 sufficient prejudice to require dismissal. Yourish, 191 F.3d at 991. However, “prejudice . . . may . 1

, 1228 (9th Cir. 2006). Moreover, “a presumption of prejudice arises from a 2 plaintiff’s unexplained failure to prosecute.” Laurino v. Syringa Gen. Hosp.,

, 753 3 (9th Cir. 2002). A plaintiff has the burden of demonstrating a non-frivolous reason for failing to 4 meet a court deadline. Id.; Yourish, 191 F.3d at 991. Here, Plaintiff has failed to comply with 5 multiple court orders and failed to appear at the August 4 show cause hearing. Therefore, the 6 Court concludes the third Henderson factor also supports dismissal. 7 The fourth Henderson factor, that public policy favors disposition of cases on their merits, 8 normally weighs strongly against dismissal. See Hernandez,

(“[T]he public policy 9 favoring resolution on the merits clearly counsels against dismissal.”) (citation omitted); 10 Pagtalunan,

(“Public policy favors disposition of cases on the merits. Thus, this 11 factor weighs against dismissal.”). “At the same time, a case that is stalled or unreasonably 12 delayed by a party’s failure to comply with deadlines . . . cannot move forward toward resolution 13 on the merits.” In re PPA, 460 F.3d at 1228. The Ninth Circuit has “recognized that this factor 14 ‘lends little support’ to a party whose responsibility it is to move a case toward disposition on the 15 merits but whose conduct impedes progress in that direction.” Id. (quoting In re Exxon Valdez, 16

(9th Cir. 1996)). Thus, although this factor typically weighs against dismissal, 17 it does not overcome Plaintiff’s failure to move this case forward and his failure to communicate 18 with his attorney. 19 Finally, the Court has already attempted less drastic sanctions without success, including 20 issuing multiple show cause orders and giving Plaintiff an opportunity to explain his failure to 21 prosecute. “Though there are a wide variety of sanctions short of dismissal available, the district 22 court need not exhaust them all before finally dismissing a case.” Nevijel v. N. Coast Life Ins. Co., 23

(9th Cir. 1981). Further, in its June 6 order, the Court warned Plaintiff that the 24 hearing would be his “final opportunity” to show cause why this case should not be dismissed for 25 failure to prosecute. As he failed to respond and did not appear at the hearing, another order 26 requiring him to respond is likely to be futile. See, e.g., Gleason v. World Sav. Bank, FSB, 2013

, at *2 (N.D. Cal. July 26, 2013) (finding dismissal under Rule 41(b) appropriate 1 giving the plaintiff an additional opportunity to re-plead). Moreover, the Court’s show cause 2 || orders have repeatedly warned Plaintiff of the risk of dismissal; thus, he cannot maintain the Court 3 failed in its “obligation to warn the plaintiff that dismissal is imminent.” Oliva,

; 4 || Ferdik,

(“a district court’s warning to a party that his failure to obey the court’s 5 order will result in dismissal can satisfy the consideration of alternatives requirement.”) (citation 6 and quotations omitted). Accordingly, the final factor weighs in favor of dismissal. 7 In sum, the Court finds at least four of the five Henderson factors weigh in favor of 8 dismissal. As Plaintiff has failed to prosecute this case, dismissal is appropriate. However, a less 9 || drastic alternative is dismissal without prejudice, which both minimizes prejudice to a defendant 10 || and preserves a plaintiff's ability to seek relief. See Ferdik,

. Thus, “[i]n an 11 abundance—perhaps overabundance—of caution,” the Court finds dismissal without prejudice is 12 appropriate. Faulkner v. ADT Sec. Servs., Inc.,

(9th Cir. 2013) (remanding to 13 consider whether dismissal should have been without prejudice). 14 Vv. CONCLUSION 15 For the reasons stated above, the Court GRANTS Stanley Goff’s Motion to Withdraw as a 16 || Counsel for Plaintiff Jessie Ali and DISCHARGES the show cause order as to Mr. Goff. As 3 17 Plaintiff Jessie Ali has failed to prosecute this matter, the Court DISMISSES this case 18 || WITHOUT PREJUDICE. The Clerk of Court shall close the file. 19 IT IS SO ORDERED. 20 21 Dated: August 4, 2022 22 7 LU \ - Lj — THOMAS S. HIXSON 23 United States Magistrate Judge 24 25 26 27 28