Caveman Foods, LLC v. Ann Payne's Caveman Foods, LLC, No. 2:2012cv01112 - Document 66 (E.D. Cal. 2015)
Court Description: MEMORANDUM and ORDER denying 57 Motion to Withdraw as Attorney signed by Senior Judge William B. Shubb on 11/4/15. (Kaminski, H)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 CAVEMAN FOODS, LLC, Plaintiff, 13 MEMORANDUM AND ORDER RE: RENEWED MOTION TO WITHDRAW AS COUNSEL v. 14 15 Civ. No. 2:12-1112 WBS DAD ANN PAYNE’S CAVEMAN FOODS, LLC, Defendant. 16 17 ----oo0oo---- 18 Plaintiff Caveman Foods, LLC, a California limited 19 20 liability company, filed this action against defendant Ann 21 Payne’s Caveman Foods, LLC, a Pennsylvania limited liability 22 company, asserting claims for trademark infringement and unfair 23 competition. 24 Rubner Frandsen, Jacqueline M. Lesser, Kevin M. Bovard, and the 25 law firm of Baker & Hostetler, LLP’s (“Baker”) renewed motion to 26 withdraw as counsel of record for defendant. 27 For the reasons discussed below, the court DENIES Baker’s motion. 28 /// Presently before the court is defense counsel Nancy 1 (Docket No. 57.) 1 I. Procedural History 2 Baker filed its first motion for withdrawal in February 3 2014, reporting that defendant notified Baker that it had ceased 4 all business operations and had no assets available for 5 distribution to creditors. 6 terminated Baker’s services and consented to Baker’s motion for 7 withdrawal. 8 motion in April 2014, someone represented to be defendant’s 9 corporate representative, George Sampson, and his personal Baker stated that defendant also (Docket Nos. 43, 46.) During the hearing on that 10 attorney appeared by telephone. 11 attorney, however, instructed him not to answer any questions or 12 speak to the court. 13 whether the individual on the phone was a proper representative 14 of defendant, whether defendant had ceased its business 15 operations and terminated Baker, and whether defendant understood 16 and assented to the consequences of being unrepresented by 17 counsel. 18 prejudice to renewing the motion under circumstances where the 19 court can verify that information. 20 (Docket No. 54.) Sampson’s As a result, the court could not verify The court denied Baker’s motion for withdrawal without (Order at 2 (Docket No. 55).) Over one year later in August 2015, Baker brings this 21 renewed motion to withdraw. 22 undertake any work in this action after its first motion for 23 withdrawal was denied in April 2014. 24 (Docket No. 57-2).) 25 longer an active company” and “has no office, telephone, email, 26 employees, or forwarding contact information in the United 27 States.” 28 motion to defendant’s registered office in Pennsylvania and to (Id. ¶ 6.) Baker represents that it did not (Frandsen Decl. ¶¶ 3-5 Baker further states that defendant “is no Baker says that it sent notice of this 2 1 the last-known email address of one of defendant’s former 2 representatives. 3 defendant that as an entity it may not appear unrepresented and 4 further warns that defendant’s failure to obtain substitute 5 counsel could result in the entry of default or default judgment 6 against it. 7 opposition to this motion, but only on the condition that a grant 8 of the motion require defendant to obtain substitute counsel 9 within thirty days. 10 11 II. (Id. ¶¶ 7, 9, Ex. A.) (Id.) That notice advises Plaintiff has filed a statement of non- (Docket No. 59.) Legal Standard Eastern District of California Local Rule 182(d) 12 provides that “an attorney who has appeared may not withdraw 13 leaving the client in propria persona without leave of court.” 14 The Local Rules provide that attorneys before the court are 15 subject to the California Rules of Professional Conduct 16 (“Rules”), regardless whether they are admitted to the California 17 State Bar. 18 Id.; see E.D. Cal. L.R. 180(b)(2)(iv), (e). An attorney’s permissive withdrawal is within the sound 19 discretion of the trial court. See United States v. Carter, 560 20 F.3d 1107, 1113 (9th Cir. 2009). 21 reasons for withdrawal, (2) the prejudice that withdrawal may 22 cause, (3) the harm to the administration of justice, and (4) the 23 extent to which withdrawal will cause undue delay. 24 v. Magellan Grp., LLC, Civ. No. 2:08-2999 MCE KJM, 2009 WL 25 3367489, at *2 (E.D. Cal. Oct. 14, 2009). 26 several grounds under which an attorney may seek to withdraw, 27 including where the “client knowingly and freely assents to the 28 termination of the employment,” id. 3-700(C)(5), or where the The court may consider: (1) the 3 CE Res., Inc. Rule 3–700 provides 1 client “renders it unreasonably difficult for the [attorney] to 2 carry out the employment effectively,” id. 3–700(C)(1)(d). 3 However, before an attorney can withdraw for any 4 reason, Rule 3–700(A)(2) requires the attorney take “reasonable 5 steps to avoid reasonably foreseeable prejudice to the rights of 6 the client, including giving due notice to the client, allowing 7 time for employment of other counsel, complying with rule 8 3-700(D)1, and complying with applicable laws and rules.” 9 Nehad v. Mukasey, 535 F.3d 962, 970 (9th Cir. 2008). Accord “[W]here an 10 attorney seeks to withdraw based on an inability to locate his or 11 her client, compliance with Rule 3-700(A)(2) requires the 12 attorney to ‘expend a reasonable amount of time and funds so as 13 to insure that the attorney makes a diligent effort to locate the 14 client.’” 15 2007 WL 4328809, at *1 (N.D. Cal. Dec. 10, 2007) (quoting 16 Bar of Cal. Standing Comm. on Prof’l Resp. & Conduct, Formal 17 Opinion No. 1989-111 at 2). 18 El Hage v. U.S. Sec. Assocs., Civ. No. C06-7828 TEH, State Before permitting counsel to withdraw, it is also this 19 court’s practice to ensure that the client understands and 20 assents to the consequences of being unrepresented by counsel. 21 Where the client is a corporation or unincorporated association, 22 those consequences are dire. 23 propria persona, corporations and other entities may appear only 24 through an attorney; an unrepresented entity cannot file any 25 pleadings, make or oppose any motions, or present any evidence to 26 27 28 1 While individuals may appear in Rule 3–700(D) provides that an attorney “whose employment has terminated shall . . . promptly release to the client, at the request of the client, all the client papers and property” and “[p]romptly refund any part of a fee paid in advance that has not been earned.” 4 1 contest liability. 2 194, 202 (1993); D-Beam Ltd. P’ship v. Roller Derby Skates, Inc., 3 366 F.3d 972, 973-74 (9th Cir. 2004); E.D. Cal. L.R. 183(a). 4 unrepresented entity is thus subject to the entry of default and 5 default judgment. 6 Inc., 480 F.3d 993, 998 (9th Cir. 2007). 7 III. Analysis 8 9 See Rowland v. Cal. Men’s Colony, 506 U.S. An See Emp. Painters’ Trust v. Ethan Enters., Baker seeks to withdraw on the ground that in February 2014, defendant terminated Baker’s services and consented to 10 Baker’s first motion for withdrawal. 11 Although Rule 3-700(C)(5) permits an attorney to withdraw if the 12 “client knowingly and freely assents to termination of the 13 employment,” a client’s assent alone does not require the court 14 to grant a motion for withdrawal. 15 *2. 16 representations or assure that defendant fully understands and 17 assents to the full consequences of Baker’s withdrawal. 18 defendant’s purported knowledge and consent regarding Baker’s 19 first motion for withdrawal, which was denied over one year ago, 20 establish that defendant is aware of and consents to Baker’s 21 present motion. 22 for its withdrawal under Rule 3-700(C)(5). 23 (Frandsen Decl. ¶¶ 3-4.) Magellan, 2009 WL 3367489, at To date, the court is unable to verify Baker’s Nor does Baker has thus failed to demonstrate good cause Baker also requests withdrawal under Rule 24 3-700(C)(1)(d), which permits withdrawal if the client “renders 25 it unreasonably difficult for the [attorney] to carry out the 26 employment effectively.” 27 ceased all business operations, “is no longer an active company,” 28 has no assets that can be distributed to creditors, and “has no Baker represents that defendant has 5 1 office, telephone, email, employees, or forwarding contact 2 information in the United States.” 3 Baker contends that withdrawal is appropriate because defendant 4 is unresponsive and “unwilling or unable to communicate,” and 5 this has rendered it unreasonably difficult for Baker to carry 6 out its employment effectively. 7 (Frandsen Decl. ¶¶ 2, 6.) (Mot. at 1 (Docket No. 57-2).) Baker’s representations to the court do not appear to 8 be entirely true. A simple internet search for “Ann Payne’s 9 Caveman Foods” reveals that defendant is indeed an active company 10 that is headquartered in Toronto, Ontario, Canada. 11 Payne’s Caveman Foods, http://www.annpaynescavemanfoods.ca (last 12 visited Oct. 29, 2015).2 13 displays products that correspond to those alleged in plaintiff’s 14 complaint. 15 Visitors can also view defendant’s numerous press releases, 16 including its most recent press release from October 2015. 17 Payne’s Caveman Foods Announces the Addition of the Twist-Off 18 Crown Cap (Oct. 8, 2015), http://www.annpaynescaveman 19 foods.ca/press14a.html.4 20 further corroborates defendant’s identity, explaining that 21 22 23 24 25 26 27 28 2 See Ann Defendant’s actively-maintained website (See Compl. ¶¶ 24-26, Ex. K (Docket No. 1).)3 Ann Its press release from October 2014 The court takes judicial notice of internet pages pursuant to Federal Rule of Evidence 201(c). See Knievel v. ESPN, 393 F.3d 1068, 1076-77 (9th Cir. 2005). 3 See also Emily Uhre, Ann Payne’s Caveman Foods, The Fussy Fork (Oct. 4, 2013), http://www.thefussyfork.com/cavemanfoods/ (blog article about defendant’s products with pictures and descriptions resembling those in Exhibit K of plaintiff’s complaint (Docket No. 1-11)). 4 Defendant’s press releases are also available on other, easily accessible websites such as Yahoo! Finance. E.g., Ann Payne’s Caveman Foods Announces the Addition of the Twist-Off Crown Cap, Yahoo! Finance (Oct. 16, 2015, 3:55 PM), http:// finance.yahoo.com/news/ann-paynes-caveman-foods-announces195500870.html. 6 1 defendant had changed its domain name “to clarify some confusion 2 in the United States . . . over a marketing subsidiary with a 3 similar name.” 4 Headquarters! (Oct. 28, 2014), http://www.annpaynescavemanfoods. 5 ca/press14d.html. 6 Ann Payne’s New Website Stresses Canadian Most importantly, defendant’s website lists its current 7 mailing address, phone numbers, email addresses, the names and 8 contact information of its representatives, the addresses of 9 eight retailers that sell defendant’s product, and upcoming 10 events that defendant’s agents will attend in the near future. 11 The foregoing information indicates that defendant is actively 12 engaged in business operations, has assets that can be 13 distributed to creditors, and publicly provides its “office, 14 telephone, email, [and] forwarding contact information” in 15 Canada. 16 contact defendant using the foregoing information, Baker’s 17 contentions that defendant is unresponsive and “unwilling or 18 unable to communicate” seem unfounded. 19 Permanente Med. Grp., 293 F.3d 1146, 1153 (9th Cir. 2002). 20 Because there is no evidence that Baker attempted to See Truesdell v. S. Cal. Pursuant to Federal Rule of Civil Procedure 11, the 21 Baker attorneys certified that they “conducted a reasonable 22 inquiry and have determined that any papers filed with the court 23 are well grounded in fact.” 24 U.S. 384, 393 (1990). 25 that Baker conducted the minimal inquiry required to verify 26 whether its representations regarding defendant were accurate. 27 Their apparent “failure to investigate [thus] fell below the 28 requisite standard established by Rule 11.” Cooter & Gell v. Hartmarx Corp., 496 Here, it does not appear to the court 7 Christian v. Mattel, 1 2 Inc., 286 F.3d 1118, 1129 (9th Cir. 2002). It also appears that Baker has failed to comply with 3 Rule 3-700(A)(2) as it had not made sufficiently diligent 4 attempts to locate defendant or notify defendant of the motion. 5 Baker indicates that it attempted to notify defendant of the 6 renewed motion by mailing notice only to defendant’s registered 7 address in Pennsylvania and by emailing the last-known email 8 address of one of defendant’s former representatives. 9 Decl. ¶¶ 7, 9, Ex. A.) (Frandsen At the hearing on the motion, Baker 10 indicated that these notices were undeliverable. 11 have granted an attorney’s motion for withdrawal based on the 12 attorney’s inability to contact the client have required more 13 extensive evidence of the attorney’s attempts to locate and 14 notify the client. 15 Pension Trust Fund v. Porges, Civ. No. 1:11-2048 LJO, 2013 WL 16 684697, at *2 (E.D. Cal. Feb. 22, 2013) (denying motion to 17 withdraw because counsel “failed to set forth the efforts used to 18 notify the clients, and failed to file a proof of service 19 indicating that the motion had been served”). 20 Courts that E.g., Bd. of Trs. of IBEW Local Union No. 100 In its motion, Baker relies on Hill Design Group v. 21 Wang, Civ. No. C04-521 JF (RS), 2006 WL 3591206 (N.D. Cal. Dec. 22 11, 2006), since the attorney there was also notified that the 23 defendants shut down their offices and were no longer doing 24 business in the United States. 25 efforts to contact defendant here, however, the attorney in Wang 26 provided evidence that it attempted to notify the defendants at 27 their home, office, and cellular phone numbers, sent them faxes 28 and numerous emails, attempted to contact them through their Id. at *1-2. 8 Unlike Baker’s 1 website, and mailed them notice with delivery confirmation and 2 UPS signature requests. Id. 3 Similarly, in Correia v. The National Railroad 4 Passenger Corp., Civ. No. 14-4504 DMR, 2015 WL 4606064 (N.D. Cal. 5 July 31, 2015), the court held that counsel complied with Rule 6 3-700(A)(2) where counsel obtained a comprehensive report of the 7 client’s contact information, had called, emailed, and mailed the 8 client notice with return receipt requested, used an address 9 obtained through Facebook, contacted the client’s friends and 10 acquaintances, and hired an investigator to help locate the 11 client and serve him with the motion to withdraw). 12 Hage, 2007 WL 4328809, the court granted the attorney’s request 13 to withdraw after it had called, mailed, and emailed the client, 14 contacted the publisher of a book written by the client, 15 performed internet searches on three different websites that 16 specialized in compiling personal information, conducted a search 17 “using Accurint, a LexisNexis company that compiles personal data 18 based on public records and other sources,” completed a 19 forwarding address request with the United States Postal Service, 20 and sent notice by registered mail to all addresses that 21 reasonably appeared to be the client’s during the attorney’s 22 investigation. 23 24 25 26 27 28 5 Lastly, in El Id. at *1-3.5 Baker further relies on Sanchez v. City of Fresno, Civ. No. 1:13-291 LJO BAM, 2013 WL 5274276 (E.D. Cal. Sept. 17, 2013), for the proposition that the “lack of a cooperative relationship between an attorney and his client may justify the attorney’s withdrawal.” Id. at *2. Sanchez did not involve an entity, but an individual who could proceed in propria persona. Id. at *3. Baker’s reliance on S.E.C. v. Souza, Civ. No. 2:09-2421 FCD KJM, 2010 WL 2231822 (E.D. Cal. June 2, 2010) is similarly misplaced: counsel in Souza never intended to appear on behalf of the 9 1 Furthermore, and most importantly, granting Baker’s 2 motion to withdraw would effectively place defendant in immediate 3 violation of the Local Rules since it would no longer have 4 counsel to represent it. 5 corporation or other entity may appear only by an attorney.”); 6 Clancy v. Bromley Tea Co., Civ. No. 12-3003-JST, 2014 WL 212603, 7 at *2 (N.D. Cal. Jan. 17, 2014) (“Defending a civil suit without 8 the benefit of counsel is problematic enough for an individual, 9 but as corporations, Defendants may not appear pro se.”). See E.D. Cal. L.R. 180(a) (“A As an 10 unrepresented LLC, defendant would thus be subject to the entry 11 of default and default judgment. 12 F.3d at 998; see also Galtieri-Carlson v. Victoria M. Morton 13 Enters., Inc., Civ. No. 2:08-1777, 2010 WL 3386473, at *2-3 (E.D. 14 Cal. Aug. 26, 2010) (sanctioning corporate defendants by striking 15 their answer when they failed to retain alternate counsel after 16 the withdrawal of their original counsel). 17 See Emp. Painters’ Trust, 480 “It is the duty of the trial court to see that the 18 client is protected, so far as possible, from the consequences of 19 an attorney’s abandonment.” 20 (denying motion to withdraw where corporation would be left 21 unrepresented by counsel). 22 “attorney’s request to withdraw where such withdrawal would work 23 an injustice or cause undue delay.” 24 substitute counsel has appeared on behalf of defendant and the 25 parties have not made the court aware of any, granting Baker’s Magellan, 2009 WL 3367489, at *2 The court may also deny an Id. Because no potential 26 27 28 defendants, disagreed with them over the direction of settlement negotiations, and argued that defendants did not pay the fees associates with their defense. Id. at *1. 10 1 motion at this time would cause an injustice by leaving defendant 2 in a judicial stalemate until a replacement attorney can be 3 located. 4 result from waiting for a party, who is apparently uninterested 5 in litigation, to begrudgingly locate an attorney to assist them 6 in continuing the litigation they seek to avoid.” 7 The court will not allow the undue delay “that would Id. at *3. In order to protect defendant’s interests in this 8 matter, the court cannot allow Baker to withdraw under these 9 circumstances. Given that Baker has failed to provide sufficient 10 grounds for withdrawal and has failed to comply with Rule 11 3-700(A)(2), the motion to withdraw is denied. 12 allow Baker to withdraw only if if it locates replacement counsel 13 for defendant. 14 370 AWI, 2013 WL 5352703, at *2 (E.D. Cal. Sept. 24, 2013) ([“B]y 15 seeking substitute counsel on Plaintiff’s behalf, Counsel has 16 taken reasonable steps to avoid any foreseeable prejudice to 17 Plaintiff”). 18 of record in this action, it is Baker’s duty to continue to 19 represent its client to the best of its ability, unless and until 20 relieved by the court. 21 duty of the attorney of record shall continue until relieved by 22 order of the Court.”). 23 The court will Cf. Duran v. City of Porterville, Civ. No. 1:13- Having undertaken to represent defendant as counsel See Local Rule 182(d) (“The authority and IT IS THEREFORE ORDERED that defense counsel Nancy 24 Rubner Frandsen, Jacqueline M. Lesser, Kevin M. Bovard, and the 25 law firm of Baker & Hostetler, LLP’s renewed motion to withdraw 26 as counsel of record for defendant be, and the same hereby is, 27 DENIED without prejudice to refile only upon an appearance by 28 substitute counsel of record for defendant. 11 1 Dated: November 4, 2015 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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