1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID KEITH, Case No. 2:18-cv-02273-DJC-JDP 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 BCSFM, LLC, 15 Defendant. 16 17 18 Ogletree, Deakins, Nash, Smoak & Stewart, P.C., counsel for defendant BCSFM, LLC, 19 move to withdraw as counsel.1 ECF No. 33. Plaintiff has filed a statement of non-opposition. 20 ECF No. 35. I recommend that the motion be granted. 21 Background 22 Plaintiff David Keith has sued defendant, a corporation, for wrongful termination. ECF 23 No. 1. Shortly after answering the complaint, defendant’s first law firm, Greenberg Traurig, LLP, 24 moved to withdraw because defendant had failed to render payment pursuant to the parties’ fee 25 agreement. ECF No. 11. Counsel from Greenberg stated that the firm had provided defendant 26 “multiple notices” that failure to pay outstanding invoices would cause Greenberg to withdraw. 27 1 The previously assigned district judge referred this motion to the undersigned. ECF 28 No. 36. 1 Id. at 4-5. 2 In ruling on Greenberg’s motion, Judge Nunley found relevant California Rule of 3 Professional Conduct 3-700, which “explicitly allows for withdrawal when a client ‘breaches an 4 agreement or obligation to the member as to expenses or fees.’” ECF No. 16 at 2 (quoting Cal. R. 5 Prof. Conduct 3-700(C)(1)(f)). Judge Nunley further found that there was a low risk of prejudice 6 were Greenberg to withdraw, and that Greenberg’s motion complied with the court’s local rules. 7 ECF No. 16 at 3. The court warned defendant that Local Rule 183(a) prohibits corporations from 8 appearing without counsel and instructed defendant to “acquire new representation and file a 9 notice of appearance by new counsel” within forty-five days. Id. 10 After forty-five days passed without an appearance from new counsel, the court directed 11 plaintiff to file a motion for entry of default. ECF No. 17. Plaintiff did so, and the Clerk of Court 12 entered default. ECF Nos. 20 & 22. Before the court issued a decision on plaintiff’s motion, 13 Ogletree appeared for defendant and filed a motion to set aside the Clerk’s entry of default. ECF 14 No. 23. Plaintiff did not oppose the motion. ECF No. 25. Judge Nunley granted defendant’s 15 motion to set aside default and instructed the parties to file a joint status report. ECF No. 26. 16 Shortly after the parties did so, Ogletree filed the instant motion to withdraw. ECF No. 33. 17 Legal Standard 18 Pursuant to the court’s local rules, “[w]ithdrawal as attorney is governed by the Rules of 19 Professional Conduct of the State Bar of California, and the attorney shall form to the 20 requirements of those Rules.” E.D. Cal. L.R. 182(d). If withdrawal would leave a client without 21 counsel, an attorney must file a formal motion and provide the client and all other parties with 22 notice of the motion to withdrawal. Id. The attorney must also submit an affidavit providing the 23 current or last known address of the client and describing the efforts made to notify the client of 24 the motion to withdraw. Id. 25 The California Rules of Professional Conduct expressly permits an attorney to seek to 26 withdraw from representation when the client “breaches an agreement or obligation to the 27 [attorney] as to expenses or fees.” Cal. R. Prof. Conduct 3-700(C)(1)(f); see Stewart v. Boeing 28 Co., No. CV 12-05621 RSWL (AGRx),

, at *2 (C.D. Cal. June 19, 2013) 1 (“The failure of a client to pay attorney’s fees provides a sufficient basis on which to grant a 2 request to withdraw from representation.”). The decision to grant or deny counsel’s motion to 3 withdraw is committed to the district court’s discretion. United States v. Carter,

, 4 1113 (9th Cir. 2009). “When ruling on motions to withdraw, courts consider: (1) the reasons why 5 withdrawal is sought; (2) the prejudice withdrawal may cause to other litigants; (3) the harm 6 withdrawal might cause to the administration of justice; and (4) the degree to which withdrawal 7 will delay the resolution of the case.” Bernstein v. City of Los Angeles, No. CV 19-

(GJSx),

, at *1 (C.D. Cal. Feb. 25, 2020) (internal quotation marks and 9 citations omitted). 10 Discussion 11 Ogletree has shown good cause for withdrawal. As with Greenberg, Ogletree seeks to 12 withdraw because defendant has failed to pay outstanding invoices. ECF No. 33. Ogletree 13 provided the declaration of its attorney Cara Barrick, who attests that defendant signed Ogletree’s 14 fee agreement, which outlined the firm’s payment requirements and provided that the firm may 15 withdraw from representation if the client fails to timely pay amounts billed. ECF No. 33-1 at 2. 16 Ms. Barrick states that defendant has failed to “pay Ogletree’s invoices and has failed to articulate 17 whether and to what extent any payment of the overdue balance may be made at any time.”

18 She further attests that Ogletree has zealously advocated for defendant’s interests.

19 Ogletree states that it has provided defendant multiple notices of its intent to file the 20 instant motion, but defendant has failed to comply with the fee agreement. Id. at 2-3. Ogletree 21 served this motion on all parties and three of defendant’s known addresses, including defendant’s 22 address listed on the Texas Secretary of State’s website. Id. at 3. Nothing in the record indicates 23 that allowing Ogletree to withdraw will harm the administration of justice, result in further delay 24 of this case, or significantly prejudice plaintiff. Indeed, plaintiff has filed a statement of non- 25 opposition, and there are no pending motions. 26 Accordingly, it is hereby RECOMMENDED that Ogletree, Deakins, Nash, Smoak & 27 Stewart, P.C.’s motion to withdraw as counsel, ECF No. 33, be granted. 28 These findings and recommendations are submitted to the United States District Judge 1 | assigned to the case, pursuant to the provisions of

(b)(1). Within fourteen days of 2 | service of these findings and recommendations, any party may file written objections with the 3 | court and serve a copy on all parties. Such document should be captioned “Objections to 4 | Magistrate Judge’s Findings and Recommendations.” Any response shall be served and filed 5 | within fourteen days of service of the objections. The parties are advised that failure to file 6 | objections within the specified time may waive the right to appeal the District Court’s 7 | order. Turner v. Duncan,

(9th Cir. 1998); Martinez v. Yist,

(9th 8 | Cir. 1991). 9 10 IT IS SO ORDERED. ll ( ie — Dated: _ August 25, 2023 q-—— 12 JEREMY D. PETERSON 3 UNITED STATES MAGISTRATE JUDGE

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