Opinion
No. C 02-5935 JL.
November 18, 2004
ORDER VACATING PERMISSION FOR COUNSEL TO WITHDRAW (Docket #73); REINSTATING DISMISSAL WITHOUT PREJUDICE (Docket #75)
Background
Plaintiff filed her Complaint on December 26, 2002. This Court has jurisdiction pursuant to 42 U.S.C. § 1983. After the matter was reassigned, all parties consented to the jurisdiction of this Court as required by 28 U.S.C. § 636(c). In October, 2004, after trial was set, Counsel for Plaintiff moved to withdraw and the Court set the matter for hearing at the same time as the case management conference.
Procedural History
At the case management conference on October 17, 2004, Plaintiff's counsel, Lawrence A. Hildes, appearing by telephone from Bellingham Washington, confirmed that all federal claims, including the conspiracy claim, had been settled and dismissed as to all defendants and that the only remaining claim was Plaintiff's cause of action under state law against defendant Ralph Navarra for assault and battery. Counsel also confirmed that Plaintiff received monetary compensation from Alton Management, the City of Berkeley and defendant Rivera. He stated that he had notified her of the case management conference and that he had expected her to be present. Plaintiff did not appear or contact the Court.
In support of his motion to withdraw, counsel asserted that Plaintiff had refused to pay his travel expenses to attend the most recent settlement conference and that she expressed "shock" when he asked her to do so. Counsel stated that the attorney-client relationship had become "shaky" and he had only remained in the case to see if the attorney-client relationship could be repaired. He said he believed that the relationship could not be repaired. Furthermore, he could not work for Plaintiff if she was unwilling to pay for his travel. It would not serve her interests for him to stay in the case; if she were unwilling to pay travel expenses, she needed to hire an attorney in the Bay Area.
Counsel stated on Plaintiff's behalf that she was not willing to dismiss her cause of action against defendant Navarra, that she wanted monetary compensation, a restraining order and for him to move out of the complex or at least to another floor.
The Court for good cause shown granted the request of Lawrence A. Hildes to withdraw as counsel of record for Plaintiff Carol Denney. Defense counsel had no objection to Plaintiff's counsel being permitted to withdraw, provided there was no change in the trial schedule. The Court then dismissed the case without prejudice to refile in state court.
Plaintiff subsequently contacted the Court by letter to object to the dismissal and to the order permitting her counsel to withdraw. Plaintiff said that she was away from her residence (and had not moved as the Court erroneously stated in the dismissal order) and did not receive notice of the case management conference at which the Court permitted counsel to withdraw. She also objected to appearing at any proceeding without counsel.
The Court vacated the dismissal and ordered Plaintiff to appear and show cause why her case should not be dismissed, should this Court decline to adjudicate the remaining cause of action under state law.
The Show Cause Hearing
On November 17, 2004, Plaintiff appeared before this Court. She objected to her attorney's being permitted to withdraw from representation. She denied that she had refused to pay counsel's expenses; in fact she stated that she had previously paid travel expenses not only for her attorney but also for his wife. Plaintiff conceded that she had not paid counsel's expenses on one occasion in late September when he demanded at the last minute that she purchase his plane ticket. She could not comply because at the time she had only a temporary bank card. She reiterated that she felt incapable of pursuing her case without counsel and asked the Court to order counsel to continue to represent her. She stated that she has been unable to obtain other counsel. The Court notes that the versions of events of Plaintiff and her attorney are completely at odds.Legal Analysis and Order
Civil Local Rule 11-5 provides that counsel may not withdraw from an action until relieved by order of Court after written notice has been given reasonably in advance to the client and to all other parties who have appeared in the case. In the case at bar all parties were notified and eventually responded. State law governs the practice of law within a state's borders except to the limited extent necessary for the accomplishment of federal objectives. See Sperry v. State of Florida, 373 U.S. 379, 402 (1963). Therefore, a motion to withdraw by an attorney in a federal case is governed by the Code of Conduct of California.
California Code of Professional Conduct Rule 3-700 provides for mandatory withdrawal for a malicious or frivolous lawsuit, which is not the case here. The Code provides for permissive withdrawal under the following circumstances:
C) Permissive Withdrawal.
I. If rule 3-700(B) is not applicable, a member may not request permission to withdraw in matters pending before a tribunal, and may not withdraw in other matters, unless such request or such withdrawal is because:
(1) The client
(a) insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law, or
(b) seeks to pursue an illegal course of conduct, or
(c) insists that the member pursue a course of conduct that is illegal or that is prohibited under these rules or the State Bar Act, or
(d) by other conduct renders it unreasonably difficult for the member to carry out the employment effectively, or
(e) insists, in a matter not pending before a tribunal, that the member engage in conduct that is contrary to the judgment and advice of the member but not prohibited under these rules or the State Bar Act, or
(f) breaches an agreement or obligation to the member as to expenses or fees.
(2) The continued employment is likely to result in a violation of these rules or of the State Bar Act; or
(3) The inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal; or
(4) The member's mental or physical condition renders it difficult for the member to carry out the employment effectively; or
(5) The client knowingly and freely assents to termination of the employment; or
(6) The member believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal. Prof.Conduct, Rule 3-700
The client's refusal to pay the attorney's fees or expenses may be sufficient grounds for a court to grant a motion to withdraw. Statute of Liberty-Ellis Island Foundation, Inc. v. International United Indus., Inc. (SD NY 1986) 110 FRD 395, 397. In the case at bar, the client's refusal to pay her attorney's travel expenses would be reasonable grounds, but Plaintiff contends that her attorney "has been well paid," and that she has covered his travel expenses when she has been able to do so.
This Court is presented with a troubled scenario and a troubled attorney-client relationship. However, this Court finds that because all federal claims have been settled and dismissed and because the Court will decline to adjudicate Plaintiff's state law claims, there is no further remedy available in this Court and thus no need to relieve counsel. Consequently, the Court vacates its order permitting counsel to withdraw. Mr. Hildes remains counsel of record for Plaintiff. Any relief of his obligation to represent Plaintiff must be obtained in state court after a new complaint is filed.
Dismissal of All Federal Claims
In cases in which a federal district court has original jurisdiction, United States Code Title 28, § 1367(a) grants the court supplemental jurisdiction over any state law claims "that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." The same statute allows district courts to decline to exercise supplemental jurisdiction if, among other things, "the district court has dismissed all claims over which it has original jurisdiction. . . ." ( 28 U.S.C. § 1367(c)(3).)
When federal courts decline to exercise supplemental jurisdiction, a claimant is relegated to pursuing these state law claims in state court. In the case at bar, Plaintiff's California common law tort claim for assault and battery against Ralph Navarra is part of the same case or controversy which led to her claims for violation of her civil rights under federal law. Plaintiff dismissed all federal claims against all defendants following settlement of those claims, with minimal involvement by the Court, aside from the referral for settlement conference. Accordingly, this Court declines to assert jurisdiction over the remaining claim under California law. The Court advised Plaintiff at the Show Cause hearing and reminds counsel by this order of the deadline for re-filing in state court. Congress expressly provided for a period of tolling of any applicable state limitations periods in section 1367(d): "The period of limitations for any claim asserted [supplementally] . . . shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period." Kendrick v. City of Eureka, 82 Cal.App.4th 364, 368 (2000). The case is hereby dismissed without prejudice to re-filing in state court.
IT IS SO ORDERED.