1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SIMON POULIOT, AS ASSIGNEE OF Case No.: 21-cv-221-JO-DDL TWINS SPECIAL CO. LTD. AN Related Case No.: 23-cv-223-JO-DDL 12 INDIVIDUAL, 13 ORDER GRANTING DEFENDANTS’ Plaintiff, COUNSEL’S MOTION TO 14 v. WITHDRAW AS COUNSEL 15 NICHOLAS MECHLING, AN [Dkt. No. 100] 16 INDIVIDUAL, AND CHRISTOPHER MECHLING, AN INDIVIDUAL, 17 Defendants. 18

19 I. 20 BACKGROUND 21 On September 22, 2023, counsel for Defendants at the law firm Witham Mahoney 22 & Abbott, LLP (“WMA”) filed a Motion to Withdraw as Attorney of Record (“Motion to 23 Withdraw”). Dkt. No. 100. On October 12, 2023, the Court held a hearing to address 24 Defendants’ counsel’s Motion to Withdraw. The Court continued the hearing to October 25 31, 2023, to allow Defendants to search for new counsel. During the October 31 hearing, 26 Defendants reported that despite diligent efforts, they had not retained new counsel. 27 Having considered the Motion to Withdraw and the parties’ statements at the hearing, the 28 Court GRANTS the Motion to Withdraw. 1 II. 2 LEGAL STANDARD 3 “An attorney may not withdraw as counsel except by leave of court.” P.I.C. Int’l, 4 Inc. v. Gooper Hermetic, Ltd., No. 3:19-CV-00734-BEN-LL,

, at *1 5 (S.D. Cal. June 4, 2020) (citation omitted). “The trial court has discretion whether to grant 6 or deny an attorney’s motion to withdraw in a civil case.” Osgood v. Main Streat Mktg., 7 LLC, No. 16CV2415-GPC(BGS),

, at *1 (S.D. Cal. Mar. 27, 2017). 8 “In ruling on a motion to withdraw as counsel, courts consider: (1) the reasons why 9 withdrawal is sought; (2) the prejudice withdrawal may cause to other litigants; (3) the 10 harm withdrawal might cause to the administration of justice; and (4) the degree to which 11 withdrawal will delay the resolution of the case.” Leatt Corp. v. Innovative Safety Tech., 12 LLC, No. 09-CV-1301-IEG POR,

, at *1 (S.D. Cal. Feb. 2, 2010). For 13 example, courts have previously held that “[f]ailure to pay attorney’s fees can be a valid 14 ground for withdrawal.” Id. at *2. Moreover, there is no danger of prejudice, harm to the 15 administration of justice, or undue delay where there are no immediately scheduled 16 hearings, the case is still in early stages, and the relevant party has had sufficient notice of 17 the intent to withdraw. See Gurvey v. Legend Films, Inc., No. 09-CV-942-IEG (BGS), 18

, at *1 (S.D. Cal. July 12, 2010). Additionally, the California Rules of 19 Professional Conduct permit a lawyer to withdraw from representing a client if the client 20 breaches a material term of an agreement with the lawyer relating to the representation, 21 and the lawyer has given the client a reasonable warning after the breach that he or she will 22 withdraw unless the client complies with the agreement. Cal. Rules of Pro. Conduct

.16(b)(5) (Cal. State Bar 2020). 24 Under this District’s Local Rules, a motion to withdraw must (1) be served on the 25 adverse party and moving attorney’s client and (2) include a declaration regarding service 26 of the motion on those parties. S.D. Cal. CivLR 83.3(f)(3). “Failure to make [service] as 27 required . . . or to file the required declaration of service will result in a denial of the 28 motion.” S.D. Cal. CivLR 83.3(f)(3)(b). 1 III. 2 DISCUSSION 3 As a preliminary matter, the Court notes that WMA has met the requirements of 4 Civil Local Rule 83.3(f) by providing a declaration and proof of service indicating that it 5 served Defendants with the Motion to Withdraw via email on September 22, 2023. Dkt. 6 Nos. 100-2 and 100-3. The Court turns next to the merits of the Motion to Withdraw. 7 WMA asserts that withdrawal is warranted under California Rule of Professional 8 Conduct 1.16(b)(5) because “Defendants have been unable to fulfill their obligations under 9 the Engagement Agreement as WMA has not received compensation for the legal services 10 provided to Defendants for a duration exceeding of nearly 1.5 years,” and “[t]he 11 outstanding balance for this matter has considerably aged due to non-payment, and 12 constitutes a breach of the agreement between Defendants and WMA pertaining to fees 13 and expenses.” Dkt. No. 100-1 at 3. The declaration of WMA attorney Matthew M. 14 Mahoney states that “[n]early four months ago, at the end of May 2023, I advised 15 Defendants that WMA would seek to withdraw if they did not fulfill their payment 16 obligations.” Dkt. No. 100-2 at ¶ 3. As of the filing date of the Motion to Withdraw, 17 “Defendants ha[d] not remitted payment, nor ha[d] they set forth a realistic plan to do so.” 18

19 Additionally, WMA contends that neither party in the action will be prejudiced if 20 the Motion to Withdraw is granted. Specifically, WMA asserts Plaintiff will not be 21 prejudiced by WMA’s withdrawal because “there is no trial date currently set, fact 22 discovery is ongoing, and the pretrial conference is set to take place in June 2024.”1 Dkt. 23 No. 100-1 at 3. WMA states that Defendants will also not be prejudiced because WMA 24 gave Defendants notice of their potential withdrawal nearly four months prior to filing the 25

26 1 At the time the Motion to Withdraw was filed, the pretrial conference in the instant 27 matter was set for September 25, 2024. Dkt. No. 98 at 4. However, the pretrial conference in the related case, Twins Special Co. Ltd. v. Twins Special LLC, No. 3:23-cv-00223-JO- 28 1 Motion to Withdraw, and because WMA gave Defendants time to find new counsel.

2 Moreover, WMA contends that its withdrawal will not harm the administration of justice 3 or delay resolution of the case given that no trial date has been set, the parties remained 4 engaged in the discovery process, and the final pretrial conference was set in September 5 2024. Id. at 4. These circumstances, WMA asserts, leave sufficient time “for Defendants 6 to obtain new counsel without any delay to the proceedings in this case.” Id. 7 Under the circumstances set forth by WMA in the Motion to Withdraw, the Court 8 finds that withdrawal by WMA is appropriate. Defendants’ failure to pay fees owed to 9 WMA for legal services rendered is a breach of a material term of the Engagement 10 Agreement. Under California Rule of Professional Conduct 1.16(b)(5), such a breach 11 represents a ground upon which to grant WMA’s Motion to Withdraw. See Leatt Corp., 12

, at *2. Additionally, the Court finds that prejudice to Plaintiff or 13 Defendants is mitigated by the Court’s issuance of an Amended Scheduling Order on 14 October 18, 2023. Dkt. No. 108. Under the Amended Scheduling Order, the fact discovery 15 cutoff is January 31, 2024; the expert discovery cutoff is April 23, 2024; the deadline to 16 file pretrial motions is May 28, 2024; and the pretrial conference is set for September 25, 17 2024. Given that WMA initially gave notice to Defendants of potential withdrawal in May 18 2023—more than five months prior to the date of this Order—Defendants have had 19 sufficient notice of WMA’s withdrawal and ample time to search for new counsel. 20 IV. 21 CONCLUSION 22 For the foregoing reasons, the Court hereby ORDERS as follows: 23 1. WMA’s Motion to Withdraw as counsel for Defendants is GRANTED. 24 2. By not later than November 10, 2023, WMA shall (a) serve a copy of this 25 Order on Defendants and file proof of service with the Court; (b) inform 26 Defendants of the contents of this Order by phone, text message, and email; 27 and (c) submit a declaration of having done so. 28 / / / 1 3. Defendants may proceed pro se (without counsel). By not later than 2 November 20, 2023, Defendants must provide their contact information 3 (mailing addresses, telephone numbers, and email addresses) to the Court 4 pursuant to Civil Local Rule 83.11(b). 5 4. All dates and deadlines set forth in the Amended Scheduling Order at Dkt. 6 No. 108 remain unchanged and in effect. 7 IT IS SO ORDERED. 8 ||Dated: November 7, 2023 . 9 Tbe! Lh. we

11 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28