1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 IN RE FALL LINE TREE SERVICE, No. 2:23-cv-00470-DAD

INC.,

12 Debtor, 13 ORDER GRANTING MOTION TO

FALL LINE TREE SERVICE, INC., WITHDRAW AS COUNSEL OF RECORD

14 FOR PLAINTIFF AND ORDER TO SHOW Plaintiff-Appellant, CAUSE WHY THIS ACTION SHOULD NOT 15 BE DISMISSED DUE TO PLAINTIFF’S v. FAILURE TO PROSECUTE 16 DICK YOST YAGHLEGIAN, et al., (Doc. No. 7) 17 Defendants-Appellees. 18 19 OFFICE OF THE U.S. TRUSTEE (SAC)

20 Trustee 21 This matter is before the court on the motion to withdraw as plaintiff-appellant Fall Line 22 Tree Service, Inc.’s counsel of record filed by attorney Galen Micah Gentry on December 27, 23 2023. (Doc. No. 7.) For the reasons explained below, the court will grant the motion to withdraw 24 as counsel and set a deadline for plaintiff-appellant to retain new counsel in order to proceed with 25 this appeal or file a notice of dismissal of this action. In addition, because plaintiff-appellant has 26 failed to timely file its opening brief in this bankruptcy appeal, the court will also order plaintiff- 27 appellant to show cause why this action should not be dismissed due to its failure to prosecute. 28 ///// 1 BACKGROUND 2 On March 13, 2023, plaintiff-appellant filed a notice of bankruptcy appeal initiating this 3 action pursuant to 28 U.S.C. § 158 and Rule 8003 of the Federal Rules of Bankruptcy Procedure. 4 (Doc. No. 1.) Specifically, plaintiff-appellant appeals the Supplemental Findings and Judgment 5 issued on February 12, 2023 by the bankruptcy court in Fall Line Tree Service, Inc. v. 6 Yaghlegian, et al., No. 20-02128, Doc. No. 169, (Bankr. E.D. Cal. Feb. 12, 2023), an adversary 7 proceeding associated with plaintiff-appellant’s bankruptcy petition in In re Fall Line Tree 8 Service, Inc., No. 20-21548. (Id. at 3.) 9 On July 28, 2023, the certificate of record was issued by the clerk of the bankruptcy court 10 and received by the clerk of this district court, and a briefing schedule for this appeal was issued. 11 (Doc. No. 3.) Pursuant to that briefing schedule, plaintiff-appellant’s opening brief was due by 12 September 8, 2023. (Id.) However, plaintiff-appellant requested an extension of time in which to 13 file its opening brief (Doc. No. 4), and the court granted that request, extending the deadline to 14 October 27, 2023 (Doc. No. 6). Plaintiff-appellant did not file an opening brief nor request 15 another extension of time in which to do so. 16 On December 27, 2023, attorney Gentry, counsel of record for plaintiff-appellant in this 17 action and in the bankruptcy action, filed the pending motion to withdraw as counsel of record for 18 plaintiff-appellant. (Doc. No. 7.) That same day, attorney Gentry also filed motions to withdraw 19 as counsel of record for debtor and plaintiff Fall Line Tree Service, Inc. in the bankruptcy action 20 and adversary proceeding. (See Doc. No. 190 in Adversary Proceeding, No. 20-02128; Doc. 21 No. 226 in Bankruptcy Action, No. 20-21548.) In the pending motion filed in this action, 22 attorney Gentry explains that plaintiff-appellant Fall Line Tree Service, Inc., through its 23 principals Ashley Nichols and Steve Nichols, terminated his representation in this action and in 24 the bankruptcy proceedings. (Doc. No. 7 at 1–2.) In particular, attorney Gentry refers to a pro se 25 filing by plaintiff-appellant in the adversary proceeding, in which plaintiff-appellant filed a copy 26 of a letter dated October 24, 2023 addressed to attorney Gentry informing him that their attorney- 27 client relationship is terminated immediately and stating that “we are deciding to not move 28 forward with the appeal because we do not believe it will be a successful route, and we do not 1 have the funds necessary to continue fighting for what we believe has already been ruled upon.” 2 (Id.) (citing Doc. No. 189 in Adversary Proceeding, No. 20-02128). In the declaration attorney 3 Gentry filed in support of the pending motion, attorney Gentry explains that on or around October 4 31, 2023, he spoke on the phone with Ms. Nichols about the termination letter and explained to 5 her that corporations cannot represent themselves in court, and she told him that she and her 6 husband Mr. Nichols were looking for a new attorney to represent Fall Line Tree Service, Inc. 7 (Doc. No. 7-1 at ¶ 3.) To date, Fall Line Tree Service, Inc. has not retained counsel to represent it 8 in this action or the bankruptcy proceedings. 9 In the pending motion, attorney Gentry states that plaintiff-appellant’s physical address is 10 3542 Lake Tahoe Blvd., South Lake Tahoe, CA 96150, and its mailing address is P.O. Box 11 19816, South Lake Tahoe, CA 96151. (Id. at ¶ 7.) Attorney Gentry also states in his declaration 12 that he notified plaintiff-appellant of the motion to withdraw as counsel by sending a letter by 13 email and first class mail to plaintiff-appellant’s two principals, Mr. Nichols and Ms. Nichols, on 14 December 5, 2023. (Id. at ¶ 8.) 15 On January 5, 2024, appellees filed a response and limited objection to the pending 16 motion, arguing that this appeal should be dismissed due to plaintiff-appellant’s failure to adhere 17 to the briefing schedule and prosecute this action. (Doc. No. 9.) 18 On January 24, 2024, the bankruptcy court held a hearing on attorney Gentry’s motion to 19 withdraw as counsel for debtor and plaintiff Fall Line Tree Service, Inc., during which the 20 bankruptcy judge granted the motion and explained to Mr. Nichols that Fall Line Tree Service, 21 Inc. cannot represent itself in court and it can only proceed with the bankruptcy petition (and the 22 appeal) if it is represented by counsel. (See Doc. Nos. 195–197 in Adversary Proceeding, No. 20- 23 02128; Doc. Nos. 233, 234, 237 in Bankruptcy Action, No. 20-21548.) The bankruptcy court 24 informed Mr. Nichols that absent representation by counsel, debtor and plaintiff Fall Line Tree 25 Service, Inc.’s bankruptcy proceedings would be subject to dismissal. (See Doc. No. 195 in 26 Adversary Proceeding, No. 20-02128; Doc. No. 233 in Bankruptcy Action, No. 20-21548.) 27 ///// 28 ///// 1 LEGAL STANDARD 2 In this district, an attorney’s withdrawal is governed by Local Rule 182 and the Rules of 3 Professional Conduct of the State Bar of California (“Rules of Professional Conduct”). In this 4 regard, Local Rule 182(d) provides: 5 Unless otherwise provided herein, an attorney who has appeared may not withdraw leaving the client in propria persona without 6 leave of court upon noticed motion and notice to the client and all other parties who have appeared. The attorney shall provide an 7 affidavit stating the current or last known address or addresses of the client and the efforts made to notify the client of the motion to 8 withdraw. Withdrawal as attorney is governed by the Rules of Professional Conduct of the State Bar of California, and the 9 attorney shall conform to the requirements of those Rules. 10 L.R. 182(d). Rule 1.16(a) of the California Rules of Professional Conduct provides several 11 grounds upon which an attorney “shall withdraw from the representation of a client,” including if 12 “the client discharges the lawyer.” Cal. R. Prof. Conduct 1.16(a)(4) (emphasis added).1 13 However, representation shall not be terminated until the attorney “has taken reasonable steps to 14 avoid reasonably foreseeable prejudice to the rights of the client, such as giving the client 15 sufficient notice to permit the client to retain other counsel.” Cal. R. Prof. Conduct 1.16(d). 16 Local Rule 183 further provides that “[a] corporation or other entity may appear only by 17 an attorney.” L.R. 183(a). “While individuals may appear in propria persona, corporations and 18 other entities may appear only through an attorney; an unrepresented entity cannot file any 19 pleadings, make or oppose any motions, or present any evidence to contest liability. Caveman 20 Foods, LLC v. Payne’s Caveman Foods, LLC, No. 2:12-cv-01112-WBS-CKD, 2015 WL 21 1 In contrast, a withdrawal is not mandatory if it is based on the grounds listed in Rule 1.16(b) of 22 the California Rules of Professional Conduct, in which case the decision to grant or deny an 23 attorney’s motion to withdraw is committed to the discretion of the trial court. “In ruling on a motion to withdraw as counsel, courts consider: (1) the reasons why withdrawal is sought; (2) the 24 prejudice withdrawal may cause to other litigants; (3) the harm withdrawal might cause to the administration of justice; and (4) the degree to which withdrawal will delay the resolution of the 25 case.” Beard v. Shuttermart of Cal., Inc., No. 3:07-cv-00594-WQH-NLS, 2008 WL 410694, at *2 (S.D. Cal. Feb. 13, 2008); see also CE Res., Inc. v. Magellan Grp., LLC, No. 2:08-cv-02999- 26 MCE-KJM, 2009 WL 3367489, at *2 (E.D. Cal. Oct. 14, 2009) (noting that “[u]ltimately, the 27 court’s ruling must involve a balancing of the equities”). Because the court determines that the attorney’s withdrawal in this case is mandatory, the court need not address these factors in this 28 order. 1 6736801, at *2 (E.D. Cal. Nov. 4, 2015) (citing Rowland v. Cal. Men’s Colony, 506 U.S. 194, 2 202 (1993)). 3 ANALYSIS 4 Here, attorney Gentry moves to withdraw as counsel of record for plaintiff-appellant Fall 5 Line Tree Service, Inc. (“appellant”) because appellant has discharged him as its lawyer. (Doc. 6 No. 7.) In particular, appellant, through its principals Mr. Nichols and Ms. Nichols, sent attorney 7 Gentry a letter dated October 24, 2023 terminating the attorney-client relationship and attorney 8 Gentry’s representation of Fall Line Tree Service, Inc. in this appeal as well as the bankruptcy 9 proceedings. (Id.) In light of appellant’s decision to discharge attorney Gentry as its counsel in 10 this action, attorney Gentry’s withdrawal is mandatory under Rule of Professional Conduct 11 1.16(a)(4). Thus, the pending motion to withdrawal as counsel for appellant will be granted. 12 In addition, the court notes that appellant’s letter terminating attorney Gentry’s 13 representation also expressed appellant’s decision “to not move forward with the appeal.” Thus, 14 it appears that appellant does not intend to proceed with this appeal. Nevertheless, out of an 15 abundance of caution, the court provide appellant with an opportunity to retain new counsel and 16 proceed with this appeal. 17 Within twenty-one (21) days of the date of this order, appellant shall file either a notice of 18 appearance of its new counsel or a notice of dismissal of this appeal. Appellant is warned that its 19 failure to file a notice of appearance of counsel will result in a dismissal of this action. If 20 appellant retains new counsel by the deadline set herein, then within seven (7) days of the filing 21 of new counsel’s notice of appearance, appellant shall file a statement to show cause why this 22 action should not be dismissed due to appellant’s failure to adhere to file its opening brief and 23 failure to prosecute this action. 24 CONCLUSION 25 For the reasons set forth above: 26 1. The motion to withdraw as counsel for plaintiff-appellant Fall Line Tree Service, 27 Inc. (Doc. No. 7) is granted; 28 ///// 1 2. The Clerk of the Court is directed to terminate attorney Galen Micah Gentry as the 2 counsel of record in this action for plaintiff-appellant Fall Line Tree Service, Inc.; 3 3. Attorney Gentry shall comply with all obligations under Rule 1.16(e) of the 4 California Rules of Professional Conduct regarding release of a client’s papers and 5 property and return of unearned fees; 6 4. Withing twenty-one (21) days of the date of this order, appellant shall file either a 7 notice of appearance of its new counsel if it wishes to continue prosecuting this 8 appeal, or a notice of dismissal of this appeal; 9 5. Appellant is warned that its failure to timely file a notice of appearance of counsel 10 will result in a dismissal of this action; 11 6. If appellant retains new counsel by the deadline set herein, then within seven (7) 12 days of the filing of new counsel’s notice of appearance, appellant shall file a 13 statement to show cause why this action should not be dismissed due to appellant’s 14 failure to file its opening brief and failure prosecute this action; and 15 7. The Clerk of the Court is directed to serve this order on plaintiff-appellant Fall 16 Line Tree Service, Inc. by mail to both of the following addresses: 17 Fall Line Tree Service, Inc. 18 3542 Lake Tahoe Blvd. 19 South Lake Tahoe, California 96150

20 Fall Line Tree Service, Inc. P.O. Box 19816 21 South Lake Tahoe, California 96151 22 73 IT IS SO ORDERED. 24 | Dated: _ January 30, 2024 Dab A. 2, aye

DALE A. DROZD

25 UNITED STATES DISTRICT JUDGE 26 27 28