Sihler v. The Fulfillment Lab, Inc

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 JANET SIHLER, Individually and On Case No.: 20cv1528-LL-DDL Behalf of All Others Similarly Situated; [12] CHARLENE BAVENCOFF, Individually ORDER 13 and On Behalf of All Others Similarly, (1) GRANTING AMENDED 14 Plaintiffs, MOTION TO WITHDRAW AS 15 v. COUNSEL OF RECORD FOR DEFENDANTS DAVID FLYNN, 16 THE FULFILLMENT LAB, INC; RICKIE JOE JAMES, BMOR RICHARD NELSON; BEYOND 17 GLOBAL LLC GLOBAL, INC.; BRIGHTREE [ECF No. 162]; 18 HOLDINGS CORP.; BMOR GLOBAL LLC; DAVID FLYNN; RICKIE JOE (2) RE BRIEFING ON MOTION FOR [19] JAMES, CLASS CERTIFICATION [20] Defendants. [22] 23 Before the Court is an Amended Motion from attorneys Daniel Watkins, Skye 24 Resendes, and The Watkins Firm, APC (collectively “TWF”) to withdraw as counsel of 25 record for Defendants David Flynn, Rickie Joe James, and BMOR Global, LLC 26 (collectively “Clients”). ECF No. 162. The Amended Motion was submitted on the papers 27 without oral argument pursuant to Civil Local Rule 7.1(d)(1) and Rule 78(b) of the Federal [28] 1 Rules of Civil Procedure. No opposition has been filed. For the reasons explained below, 2 the Court GRANTS TWF’s Amended Motion to Withdraw as counsel. 3 I. PROCEDURAL HISTORY 4 The operative complaint in this consumer class action involving weight loss pills 5 was filed March 7, 2022 by Plaintiffs Janet Sihler and Charlene Bavencoff against 6 Defendants The Fulfillment Lab, Inc., Richard Nelson, Beyond Global Inc., Brightree 7 Holdings Corp., BMOR Global LLC, David Flynn, and Rickie Joe James. ECF No. 120. 8 Plaintiffs filed their motion for class certification on June 4, 2022, which is currently 9 pending. ECF No. 130. 10 On June 24, 2022, the Court denied without prejudice Plaintiffs’ ex parte motion for 11 service by alternate means through the Nevada Secretary of State as to Defendant BMOR 12 Global, LLC (“BMOR”). ECF No. 137. 13 On July 19, 2022, Defendants David Flynn and Rickie Joe James were served by 14 alternate means with a summons, the Second Amended Complaint, and the Court’s order 15 allowing service by alternate means. ECF No. 146; see also ECF No. 145. 16 On September 23, 2022, Defendants David Flynn, Rickie Joe James, and BMOR 17 Global, LLC filed their answer and affirmative defenses. ECF No. 157. 18 On November 30, 2022, TWF filed a Motion to Withdraw as counsel for their 19 Clients. ECF No. 158. The Court denied it without prejudice for failing to file proof of 20 service of the motion to withdraw on BMOR. ECF No. 161. On March 27, 2023, TWF 21 filed the instant Amended Motion with a sworn amended certificate of service indicating 22 service to BMOR.1 ECF No. 162. No opposition was filed. 23 / / / 24 / / / [26] 27 1 BMOR’s registered agent is David Flynn who has also been served. ECF No. 162-2, Declaration of Skye Resendes filed March 27, 2023 (“Resendes Decl. March 2023”), [28] 1 II. LEGAL STANDARD 2 “An attorney may not withdraw as counsel except by leave of court.” P.I.C. Int'l, 3 Inc. v. Gooper Hermetic, Ltd., No. 3:19-CV-00734-BEN-LL, 2020 WL 2992194 , at *1 4 (S.D. Cal. June 4, 2020) (citation omitted). “The trial court has discretion whether to grant 5 or deny an attorney’s motion to withdraw in a civil case.” Osgood v. Main Streat Mktg., 6 LLC, No. 16CV2415-GPC(BGS), 2017 WL 7362740 , at *1 (S.D. Cal. Mar. 27, 2017). 7 Under this district’s Civil Local Rules, “corporations, partnerships and other legal entities, 8 may appear in court only through an attorney permitted to practice pursuant to Civil Local 9 Rule 83.3.” S.D. Cal. CivLR 83.3(j); see also Laskowitz v. Shellenberger, 107 F. Supp. 10 397, 398 (S.D. Cal. 1952) (“Since a corporation cannot practice law, and can only act 11 through the agency of natural persons, it follows that it can appear in court on its own 12 behalf only through a licensed attorney.”). 13 “In ruling on a motion to withdraw as counsel, courts consider: (1) the reasons why 14 withdrawal is sought; (2) the prejudice withdrawal may cause to other litigants; (3) the 15 harm withdrawal might cause to the administration of justice; and (4) the degree to which 16 withdrawal will delay the resolution of the case.” Leatt Corp. v. Innovative Safety Tech., 17 LLC, No. 09-CV-1301-IEG POR, 2010 WL 444708 , at *1 (S.D. Cal. Feb. 2, 2010). For 18 example, courts have previously held that “[f]ailure to pay attorney’s fees can be a valid 19 ground for withdrawal.” Id. at *2. Moreover, there is no danger of prejudice, harm to the 20 administration of justice, or undue delay where there are no immediately scheduled 21 hearings, the case is still in early stages, and the relevant party has had sufficient notice of 22 the intent to withdraw. See Gurvey v. Legend Films, Inc., No. 09-CV-942-IEG (BGS), 2010 23 WL 2756944 , at *1 (S.D. Cal. July 12, 2010). 24 A motion to withdraw must (1) be served on the adverse party and moving attorney’s 25 client and (2) include a declaration regarding service of the motion on those parties. 26 S.D. Cal. CivLR 83.3(f)(3). “Failure to make [service] as required . . . or to file the required 27 declaration of service will result in a denial of the motion.” S.D. Cal. CivLR 83.3(f)(3)(b). [28] 1 III. DISCUSSION 2 As a preliminary matter, the Court notes that TWF has met the requirements of Civil 3 Local Rule 83.3(f) by providing proof of its service of the Amended Motion and the 4 original Motion to Withdraw on the Clients and adverse parties. ECF No. 162-4. The Court 5 turns next to the merits of the Amended Motion.2 6 A. Valid Cause for Withdrawal 7 TWF claims that withdrawal as counsel is appropriate because (1) the Clients’ 8 refusal to communicate with them has resulted in TWF’s lack of authority to act in any 9 particular manner for them and (2) the Clients have failed to abide by the retainer 10 agreement. ECF No. 158-1 at 3–4. 11 The following summary of events comes from a declaration made by attorney Skye 12 Resendes in the original Motion. Ms. Resendes attests that The Watkins Firm, through her, 13 began representing Mr. Flynn, Mr. James, and BMOR in this matter in August 2022. 14 ECF No. 158-2, Declaration of Skye Resendes filed November 30, 2022 (“Resendes Decl. 15 Nov. 2022”), ¶ 2. From September through October 19, 2022, she shared with the Clients 16 the amount of work and costs involved with getting up to speed and working on the pending 17 motion for class certification, as well as twice requesting “specific direction about the 18 object of the representation.” Id. ¶ 4. The Clients did not provide any direction in response 19 to those requests and ceased all communication with TWF as of September 23, 2022. Id. 20 ¶¶ 4–6. Ms. Resendes, a paralegal, and the firm’s operations manager attempted over the 21 course of two months to request a conference with counsel to get direction in the case via 22 U.S. mail, email, texting, and phone calls, with no response. Id. ¶ 7. Additionally, the 23 Clients failed to pay their September or October 2022 balances despite invoice emails, 24 courtesy reminders, a letter requesting contact, and warnings that failure to pay would lead 25 to immediate withdrawal. Id. ¶ 10. On November 8, 2022, TWF informed the Clients of [27] 2 TWF incorporates its memorandum of points and authorities set forth in its original [28] 1 their intention to withdraw as counsel, with no response. Id. ¶ 8. On November 15, 2022, 2 TWF again informed the Clients of their need to withdraw in the absence of 3 communication, with no response. Id. TWF communicated their intent to withdraw through 4 phone, text, email, and U.S. mail. Id. 5 In the Amended Motion, counsel for TWF adds that they reconnected with Mr. Flynn 6 on December 8, 2022, but not Mr. James. ECF No. 162-1 at 2. Mr. Flynn is not only their 7 client, but also the registered agent for their client BMOR. Resendes Decl. March 2023 8 ¶ 4. Counsel states that the differences remain, and TWF cannot proceed because of the 9 continued breakdown in the relationship with Clients. Id.; ECF No. 162-1 at 2–3. 10 The Court finds TWF’s claims are valid reasons for withdrawal. The Clients’ 11 cessation of communication with TWF, failure to abide by the payment terms of the 12 retainer agreement, and refusal to do either despite warnings of withdrawal have made it 13 unreasonably difficult for TWR to represent the Clients effectively. See Osgood, 2017 14 WL 7362740 , at *1 (granting counsel’s motion to withdraw due to defendants, including 15 a corporate defendant, failing to pay legal fees and refusing to communicate with 16 counsel). Because the case is in its early stages with class certification not yet decided 17 and the Clients have had sufficient notice of the intent to withdraw, there is no danger of 18 prejudice to other litigants, harm to the administration of justice, or undue delay. See 19 Gurvey, 2010 WL 2756944 , at *1. Accordingly, the Court finds it is appropriate for TWR 20 to withdraw as counsel for the Clients because the relevant considerations weigh in their 21 favor. 22 B. Business Entity Must Retain New Counsel or Risk Default Proceedings 23 The Court recognizes that granting the withdrawal motion would leave BMOR 24 Global, LLC, a corporate entity, without counsel in contravention of Local Rule 83.3(j). 25 However, Rule 83.3(j) is not offended where a court orders an unrepresented entity to find 26 substitute counsel and provides time to do this on the condition that failure to do so will 27 expose the defendant to default proceedings. See, e.g., Osgood, 2017 WL 7362740 , at *2 28 (granting counsel’s motion to withdraw from representing a business entity defendant; 1 ordering the defendant to obtain new counsel within thirty days and requiring counsel to 2 file a notice of appearance within that timeframe; and warning the defendant of the risk of 3 default judgment upon its failure to retain new counsel); see also United States v. High 4 Country Broad Co., Inc., 3 F.3d 1244, 1245 (9th Cir. 1993) (affirming a default judgment 5 against a corporate defendant that failed to comply with the court’s order requiring it to 6 retain new counsel). 7 C. Pending Motion for Class Certification 8 Counsel describes the breakdown in the attorney-client relationship with the Clients 9 as including a lack of direction as to how counsel should proceed on the pending motion 10 for class certification. Resendes Decl. Nov. 2022 ¶¶ 4–6; Resendes Decl. March 2023 ¶ 4. 11 As a result, no opposition to the motion for class certification has been filed by the Clients. 12 The Court will sua sponte allow the Clients one last opportunity to file an opposition on or 13 before May 26, 2023. 14 IV. CONCLUSION 15 For the above reasons, the Court GRANTS the Amended Motion as follows: 16 1. TWF’s Amended Motion to Withdraw as counsel of record is GRANTED. 17 On or before April 28, 2023, TWF shall (1) serve a copy of this Order on the Clients and 18 file proof of service with the Court and (2) inform the Clients of the contents of this Order 19 by phone, text message, and email and submit a declaration of having done so. 20 2. Defendants David Flynn and Rickie Joe James may proceed pro se (without 21 counsel) and must inform the Court and opposing parties of their current addresses on or 22 before May 12, 2023 pursuant to Civil Local Rule 83.11(b). 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 3. Defendant BMOR Global, LLC must retain counsel and have counsel file a 2 || notice of appearance on or before May 12, 2023 or be subject to default proceedings filed 3 || by Plaintiffs pursuant to Rule 55 of the Federal Rules of Civil Procedure. 4 Additionally, Clients may file an opposition to the pending motion for class 5 || certification on or before May 26, 2023. 6 IT IS SO ORDERED. 7 ||Dated: April 21, 2023 NO 9 Honorable Linda Lopez 10 United States District Judge