Operating Engineers Health and Welfare Trust Fund, et al. v. Nottnagel Industries, Inc., et al.

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 OPERATING ENGINEERS HEALTH Case No. 25-cv-06632-TSH AND WELFARE TRUST FUND, et al., — 8 — Plaintiffs, ORDER GRANTING MOTION TO 9 WITHDRAW AS COUNSEL WITH v. CONDITIONS; ORDER CONTINUING 10 CASE MANAGEMENT CONFERENCE NOTTNAGEL INDUSTRIES, INC., et al., 11 Re: Dkt. No. 17 Defendants. — 12 — 13 I. INTRODUCTION 14 On November 10, 2025, James Bourbeau filed a Motion to Withdraw as Counsel for 15 Defendant Nottnagel Industries, Inc. (NII) pursuant to Civil Local Rule 11-5. ECF No. 17. 16 Plaintiffs filed a statement of non-opposition. ECF No. 30. NII has not filed a response. The 17 Court finds this matter suitable for disposition without oral argument and VACATES the 18 December 18, 2025 hearing. See Civ. L.R. 7-1(b). For the reasons stated below, the Court 19 GRANTS the motion. 20 II. BACKGROUND 21 James Bourbeau is the attorney of record for Defendants NII, a suspended California 22 Corporation, Matthew Nottnagel, an individual, and N6 LLC, a California Limited Liability 23 Company. Bourbeau Decl. ¶ 1, ECF No. 17-1. NII was suspended by the California Franchise 24 Tax Board (FTB) effective April 2, 2024, for failure to meet tax obligations. Id. ¶ 5 & Ex. A 25 (California Secretary of State business entity detail for NII, showing its status as “Suspended – 26 FTB” effective April 2, 2024). However, Bourbeau states that on November 6, 2025, he “was 27 informed by the client via email that there is no intention to revive NII.” Id. ¶ 6 & Ex. B. 1 making continued representation unreasonably difficult. Id. ¶ 7. 2 After Bourbeau filed the present motion, the Court granted Matthew Nottnagel and N6’s 3 motion to substitute in Steven Benjamin as their counsel of record. ECF Nos. 21, 23. 4 III. LEGAL STANDARD 5 Civil Local Rule 11–5(a) provides that “[c]ounsel may not withdraw from an action until 6 relieved by order of Court after written notice has been provided, reasonably in advance, to the 7 client and to all other parties who have appeared in the case.” The decision to permit counsel to 8 withdraw is within the sound discretion of the trial court. United States v. Carter, 560 F.3d 1107 , 9 1113 (9th Cir. 2009). When addressing a motion to withdraw, the consent of the client is not 10 dispositive. Robinson v. Delgado, 2010 WL 3259384 , at *2 (N.D. Cal. Aug. 18, 2010)). Rather, 11 the court must consider factors such as the reason counsel seeks to withdraw, the possible 12 prejudice caused to the litigants, and the extent to which withdrawal may delay resolution of the 13 case. Id. 14 Additionally, Civil Local Rule 11–4(a)(1) mandates compliance with the standards of 15 professional conduct required of members of the State Bar of California. See also Nehad v. 16 Mukasey, 535 F.3d 962, 970 (9th Cir. 2008) (applying California Rules of Professional Conduct to 17 attorney withdrawal). Counsel must take steps to avoid reasonably foreseeable prejudice to the 18 rights of the client, including giving sufficient notice to the client to allow time for employment of 19 other counsel, complying with Rule of Professional Conduct 1.16(e) (regarding the return of all 20 client materials and property), and complying with all other applicable laws and rules. El Hage v. 21 U.S. Sec. Assocs., Inc., 2007 WL 4328809 , at *1 (N.D. Cal. Dec. 10, 2007). 22 IV. DISCUSSION 23 The Court finds good cause for withdrawal. First, since NII is a suspended corporation, it 24 lacks the capacity to defend itself in this lawsuit. See Garvin v. Tran, 2010 WL 2991260 , at *1 25 (N.D. Cal. July 29, 2010) (granting motion to withdraw as counsel for suspended corporation) 26 (citing Traub Co. v. Coffee Break Serv., Inc., 66 Cal. 2d 368, 371 (1967); Boyle v. Lakeview 27 Creamery Co., 9 Cal. 2d 16, 19 (1937); Cal. Rev. & Tax Code § 23301.5 ). Second, California 1 counsel may properly seek to withdraw from representation, including when “the client by other 2 conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively.” 3 Cal. Rule of Prof. Conduct 1.16(b)(4). Due to NII’s suspended status and its stated refusal to 4 revive the corporation, Bourbeau is unable to effectively represent NII in this action. See Cal. 5 Rule of Prof. Conduct 1.2.1 (“A lawyer shall not counsel a client to engage, or assist a client in 6 conduct that the lawyer knows is criminal, fraudulent, or a violation of any law, rule, or ruling of a 7 tribunal.”). 8 In addition, the Court finds Bourbeau has complied with the requirements of Civil Local 9 Rule 11-5(a) and the California Rules of Professional Conduct because he provided reasonable 10 advance notice to NII of his intention to withdraw as counsel of record. See ECF No. 20 (proof of 11 service on NII). Accordingly, the Court finds withdrawal is appropriate and therefore GRANTS 12 Bourbeau’s motion. 13 A corporation can only appear through licensed counsel. See Civ. L.R. 3-9(b); Rowland v. 14 Cal. Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 202 (1993) (“It has been the 15 law for the better part of two centuries . . . that a corporation may appear in the federal courts only 16 through licensed counsel.”) (citations omitted); Bourbeau v. Cognitive Code Corp., 693 F. App’x 17 499, 503 (9th Cir. 2017) (affirming district court’s dismissal based on corporation’s failure to 18 retain counsel). Thus, as NII has made no appearance through substitute counsel, the Court grants 19 Bourbeau’s motion to withdraw on the condition that he remain counsel of record pursuant to 20 Civil Local Rule 11-5(b) to serve all filed documents on NII until substitute counsel appears on its 21 behalf. NII is advised that failure to retain substitute counsel could result in the entry of default 22 judgment against it. See Emp. Painters’ Tr. v. Ethan Enters., Inc., 480 F.3d 993, 998 (9th Cir. 23 2007) (affirming entry of default judgment where corporate defendant failed to obtain substitute 24 counsel); United States v. High Country Broad. Co., Inc., 3 F.3d 1244, 1245 (9th Cir. 1993) 25 (same). 26 V. CONCLUSION 27 For the reasons stated above, the Court GRANTS James Bourbeau’s Motion to Withdraw 1 filed on NII’s behalf, the motion is granted on the condition that Bourbeau remain counsel of 2 || record to serve all filed documents on NI until a substitution of counsel is filed. See Civ. L.R. 113 5(b). For all such documents, Bourbeau shall e-file proof of service within three business days of 4 || filing. NII is advised that failure to retain substitute counsel could result in the entry of default 5 || judgment against it. 6 The Court CONTINUES the case management conference in this matter to February 12, 7 2026 at 10:00 a.m. by Zoom video conference. The webinar link and instructions are located at 8 || https://cand.uscourts.gov/judges/hixson-thomas-s-tsh/. This conference shall be attended by lead 9 trial counsel. By February 5, the parties shall file an updated Joint Case Management Statement 10 || containing the information in the Standing Order for All Judges in the Northern District of 11 California, available at: http://cand.uscourts.gov/tshorders. The Joint Case Management 12 Statement form may be obtained at: http://cand.uscourts.gov/civilforms. 5 13 IT IS SO ORDERED. 15 Dated: December 10, 2025 16 ALN. Lj, — THOMAS S. HIXSON 17 United States Magistrate Judge — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —