Meggs v. 1250 North SD, LLC

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 JOHN MEGGS, Individually, Case No.: 3:19-cv-1720-GPC-BGS 12 Plaintiff, ORDER GRANTING DEFENDANT’S 13 v. COUNSEL’S REQUEST TO WITHDRAW [14] 1250 NORTH SD, LLC, a Foreign 15 Limited Liability Company, (ECF No. 13) 16 Defendant. [18] On February 10, 2020, Defendant 1250 North SD, LLC’s counsel, the law firm of [19] Jackson DeMarco and its attorneys, filed a motion seeking to withdraw. (ECF No. 13.) [20] For the following reasons, the Court GRANTS Defendant’s counsel’s motion. [21] I. Background [22] Attached with the February 10, 2020 motion to withdraw as counsel, Defendant [23] has included a sworn declaration signed at Attorney M. Alim Malik. (ECF No. 13-1, [24] Malik Decl.) Mr. Malik avers that, on February 4, 2020, he was “informed that the [25] ownership/membership interests in 1250 North had changed such that the individuals [26] from whom [he and his associate, Ms. Brittany Ortiz] had been receiving instructions [27] 1 were no longer able to provide those instructions due to a change in ownership and 2 control.” (Id. at ¶ 4.) 3 In response, Mr. Malik contacted Mr. Robert Perelman of Ladder Capital, LLC, an 4 organization now allegedly in “managerial control” of Defendant. (Id. at ¶ 6.) Mr. Malik 5 “informed Ladder that due to a potential conflict of interest, [Malik] and [his] firm are 6 unable to continue as counsel of record.” (Id. at ¶¶ 4, 6.) Mr. Malik expects that Ladder 7 will be selecting new counsel on behalf of Defendant in the “near future.” (Id. at ¶ 8.) Mr. 8 Malik also spoke with Plaintiff’s counsel, Mr. Donald MacKay, who does not object to 9 the withdrawal of Defendant’s counsel. (Id. at ¶¶ 9–11.) 10 II. Legal Standard 11 An attorney may not withdraw as counsel except by leave of court, Kassab v. San 12 Diego Police Dep’t, No. 07-CV-1071-WQH, 2008 WL 251935 , at *1 (S.D. Cal. Jan. 29, 13 2008), and the decision to grant or deny counsel’s motion to withdraw is committed to 14 the discretion of the trial court. Beard v. Shuttermart of Cal., Inc., No. 07-CV-594-WQH, [15] 2008 WL 410694 , at *2 (S.D. Cal. Feb. 13, 2008). Additionally, under local rules, an 16 attorney must serve notice of its motion to withdraw on the adverse party as well as on 17 the moving party's client with a declaration of service. CIV. LR. 83.3(f)(3). 18 “In ruling on a motion to withdraw as counsel, courts consider: (1) the reasons why 19 withdrawal is sought; (2) the prejudice withdrawal may cause to other litigants; (3) the 20 harm withdrawal might cause to the administration of justice; and (4) the degree to which 21 withdrawal will delay the resolution of the case.” Garrett v. Ruiz, No. 11-CV-2540-IEG, [22] 2013 WL 163420 , at *2 (S.D. Cal. Jan. 14, 2013) (quoting Leatt Corp. v. Innovative 23 Safety Technology, LLC, 2010 WL 444708 , at * 1 (S.D. Cal. Feb.2, 2010). There is no 24 danger of prejudice where a “case is still in its infancy,” “there are no immediately 25 scheduled hearings,” and the opposing party receives “notice of [counsel’s] intent to 26 withdraw.” Gurvey v. Legend Films, Inc., No. 09-CV-942-IEG, 2010 WL 2756944 , at *1 27 (S.D. Cal. July 12, 2010). In addition, the local rules of this district incorporate “the 1 standards of professional conduct required by members of the State bar of California,” 2 CIV. LR. 83.4(b), which in turn state that counsel is not to withdraw without taking 3 “reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, 4 including giving due notice to the client [and] allowing time for employment of other 5 counsel.” Skazzi3 Capital Ltd. v. Pathway Genomics Corp., No. 3:18-CV-00317-BEN, [6] 2019 WL 6878871 , at *1 (S.D. Cal. Dec. 17, 2019) (quoting Cal. R. of Prof. Conduct 37 700(A)(2)). 8 The balance of these factors changes, in part, with respect to corporate Defendants 9 as only “natural persons representing their individual interests in propria persona may 10 appear in court without representation by an attorney . . . All other parties, including 11 corporations, partnerships and other legal entities, may appear in court only through an 12 attorney permitted to practice.” CIV. LR. 83.3(k); see also Laskowitz v. Shellenberger, [13] 107 F. Supp. 397, 398 (S.D. Cal. 1952) (“Since a corporation cannot practice law, and 14 can only act through the agency of natural persons, it follows that it can appear in court 15 on its own behalf only through a licensed attorney. It cannot appear by an officer of the 16 corporation who is not an attorney, and may not even file a complaint except by an 17 attorney, whose authority to appear is presumed; in other words, a corporation cannot 18 appear in propria persona.”) 19 III. Analysis 20 Here, Defendant has presented adequate reason to discharge counsel, namely, the 21 existence of a potential conflict of interest. (ECF No. 13 at 2; ECF No. 13-1, Malik Decl. 22 at ¶ 7.) Counsel, moreover, has obtained the permission of Defendant and their new 23 ownership. (ECF No. 13-1, Malik Decl. at ¶¶ 6–8.) Counsel has also provided adequate 24 notice of his withdrawal to Plaintiff through a phone conversation and the instant motion 25 and has obtained Plaintiff’s consent to withdraw. (Id. at ¶¶ 9–11.) Lastly, on February 18, 26 2020, Lindsay L. Ryan of the firm of Polsinelli LLP entered an appearance as substitute 27 counsel for Defendant. (ECF No. 15.) Thus, the Court finds that counsel’s withdrawal 1 || will not unduly prejudice or delay the instant litigation, and results from a permissible 2 ||reason. See Garrett, 2013 WL 163420 , at *2. 3 The Court thus GRANTS the instant motion. 4 |/IV. Conclusion 5 For the foregoing reasons, the Court hereby ORDERS that: 6 1. Defendant counsel’s motion to withdraw is GRANTED; 7 2. The Clerk of Court SHALL update the docket to reflect the withdrawal of Mr. 8 M. Alik Malik and his law firm as counsel for Defendant 1250 North SD, LLC; 9 3. The Clerk of Court SHALL update the docket to reflect the general appearance 10 of Polsinelli LLP as counsel of record for the Defendant; and 1] 4. Defendant’s Counsel, Mr. M Alim Malik, SHALL immediately serve all parties 12 with a copy of this Order and then file a proof of service to confirm service. 13 IT IS SO ORDERED. 14 Dated: February 19, 2020 15 Hon. athe Coke 16 United States District Judge