EVONY, LLC, a Delaware limited liability company, Plaintiff, vs. AERIA GAMES & ENTERTAINMENT, INC., a Delaware corporation, and FENG INVESTMENT, LTD, a foreign corporation, Defendants.
Case No: C 11-0141 SBA
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION
September 28, 2012
Docket 42
The parties are presently before thе Court on Newman Du Wors LLP‘s (the “Newman Firm“) motion to withdraw as counsel of record for Defendant Feng Investment, Ltd. (“Feng Investment“). Dkt. 42. Plaintiff Evony, LLC (“Evony“) opposes the motion. Dkt. 49. Having read and considеred the papers filed in connection with this matter and being fully informed, the Court hereby DENIES the motion WITHOUT PREJUDICE, for the reasons stated below. The Court, in its discretion, finds this matter suitable for resolution without oral argument. See
I. DISCUSSION
A. Legal Standard
The Court‘s Civil Local Rules authorize an attorney to withdraw as counsel of record if: (1) written notice has been given reasonably in advance to the client and all other parties in the action; and (2) the attorney obtains leave of Court. Civ. L.R. 11-5(a); see Darby v. City of Torrance, 810 F.Supp. 275, 276 (C.D. Cal. 1992) (an attorney representing a client may not withdraw except by leavе of court). In addition, the Local Rules provide that “[w]hen withdrawal by an attorney from an action is not accompanied by simultaneous appearance of substitute сounsel or agreement of the party to appear pro se, leave to
In this district, the conduct of counsel, including the withdrawal of counsel, is governed by the standards of professional conduct required of members of the State Bar of California. Civ. L.R. 11-4(a)(1); see Nehad v. Mukasey, 535 F.3d 962, 970 (9th Cir. 2008) (applying California Rules of Professional Conduct to attorney withdrawal). California Rule of Professional Conduct 3-700(C)(1)(d) allows withdrawal where the client “renders it unreasonably difficult for [counsel] to carry out the employment effectively.” Howеver, before counsel can withdraw, counsel must comply with California Rule of Professional Conduct 3-700(A)(2), which provides that counsel shall not withdraw from employment until the member has tаken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employmеnt of other counsel, complying with rule 3-700(D) (regarding papers), and complying with applicable laws and rules. See El Hage v. U.S. Sec. Assocs., Inc., 2007 WL 4328809, at *1 (N.D. Cal. 2007). The decision to permit counsel to withdraw is within the sound discretiоn of the trial court. See United States v. Carter, 560 F.3d 1107, 1113 (9th Cir. 2009).
B. Motion to Withdraw
The Newman Firm moves to withdraw as counsel of record for Feng Investment on the ground that it no longer has “a reliable means of communication with a rеpresentative for Feng Investment, which impacts [its] ability to continue to represent its interests.” Mtn. to Withdraw at 2, Dkt. 43; Linke Decl. ¶ 5. According to the Newman Firm, Feng Investment is located in China and “has not meaningfully responded to recent communications.” Id. The Newman Firm contends that withdrawal is appropriate because its agreement with Feng Investment allows it to withdraw аt any time and for any reason, “subject to ‘an obligation to give [client] reasonable notice to arrange alternative representation.” Mtn. to Withdraw at 2 (alteration in original); Linke Decl. ¶¶ 3, 6.
The Court finds that the Newman Firm failed to show that withdrawal is appropriate. The Newman Firm did not demonstrate that it complied with the requirements of Civil Local Rule 11-5(a) or California Rule of Professional Conduct 3-700(A)(2). While the Newman Firm claims that notice of their intention to withdraw was provided to Feng Investment, it has nоt demonstrated that written notice was given reasonably in advance to its client as required by Civil Local Rule 11-5(a). In support of its motion, the Newman Firm did not submit any evidence showing that written notice of their intent to withdraw was given to their client and when it was given, other than counsel‘s statement in his declaration that the Newman Firm “provided notice of [its] intent to withdraw to Fеng Investment, Ltd. in writing on September 28, 2011.” Linke Decl. ¶ 5. A copy of the written notice that the Newman Firm purportedly provided was not submitted with the motion to withdraw. Nor did the Newman Firm submit evidence demonstrating that it
Indeed, given the Newman Firm‘s representation that it does not have a “reliable means of communication” with Feng Investment, it is entirely possible, if not likely, that Feng Investment did not recеive written notice of the Newman Firm‘s intent to withdraw as counsel of record in this action. In fact, in its reply brief, the Newman Firm argues that withdrawal should not be subject to the condition that it сontinue to be served papers for forwarding purposes because the firm is “unable to meaningfully communicate with Feng [Investment]” and “no longer ha[s] reliable communications with Feng [Investment],” and therefore “an order requiring that [the Newman Firm] attempt to forward papers would be unlikely to result in actual notice.” Reply at 1, 3, Dkt. 50.2 The Newman Firm, however, fails tо reconcile this statement with counsel‘s statement in his declaration claiming that Feng Investment was provided actual notice of firm‘s intent to withdraw in writing. In short, absent evidence demonstrating that the Newman Firm complied with the written notice requirement of Civil Local Rule 11-5(a), withdrawal is not appropriate.
Furthermore, the Newman Firm did not submit evidence demonstrating thаt it complied with California Rule of Professional Conduct 3-700(A)(2), which provides, among other things, that counsel shall not withdraw from employment until the member has taken reasonable steрs to avoid reasonably foreseeable prejudice to the rights of the client. The Newman Firm did not submit any evidence demonstrating that its business entity client was given a detailed explanation of the consequences of withdrawal. For example, there is no indication that the Newman Firm informed Feng Investment of its need to retain new
In sum, the Court finds that withdrawal is not appropriate because the Newman Firm has not complied with Civil Local Rule 11-5(a) or the California Rules of Professional Conduct. The Newman firm failed to submit evidence establishing that written notice of their intent to withdraw was given reasonably in advance to its client, and that they took all reasonable steps to avoid reasonably foreseeable prejudice to the rights of its business entity client. Accordingly, the Newman Firm‘s motion to withdraw is DENIED WITHOUT PREJUDICE.
II. CONCLUSION
For the reasons stated above, IT IS HEREBY ORDERED THAT:
- The Newman Firm‘s motion to withdraw as counsel of record for Feng Investment is DENIED WITHOUT PREJUDICE to filing a motion with proof of satisfying the requirements of Local Rule 11-5 and the California Rules of Professional Conduct.
- This Order terminates Docket 42.
IT IS SO ORDERED.
Dated: September 28, 2012
SAUNDRA BROWN ARMSTRONG
United States District Judge