Case 5:18-cv-07581-LHK Document 45 Filed 03/27/19 Page 1 of 5
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`GREGORY P. STONE (State Bar No. 78329)
`gregory.stone@mto.com
`STEVEN M. PERRY (State Bar No. 106154)
`steven.perry@mto.com
`ELIZABETH A. LAUGHTON (State Bar No. 305800)
`elizabeth.laughton@mto.com
`MUNGER, TOLLES & OLSON LLP
`350 South Grand Avenue, 50th Floor
`Los Angeles, California 90071-3426
`Telephone:
`(213) 683-9100
`Facsimile:
`(213) 687-3702
`
`Attorneys for Defendants
`FLEX LOGIX TECHNOLOGIES, INC.
`DR. DEJAN MARKOVIC
`DR. CHENG WANG
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`
` Case No. 5:18-cv-07581-LHK
`
`
`DEFENDANT FLEX LOGIX
`TECHNOLOGIES, INC.’S
`OPPOSITION TO PLAINTIFF’S
`COUNSEL’S MOTION TO
`WITHDRAW
`
`Judge: Lucy H. Koh
`Ctrm.: 8, 4th Floor
`
`Initial Case Management Conference:
`Date: April 3, 2019
`Time: 2:00 p.m.
`
`
`KONDA TECHNOLOGIES, INC., a
`California corporation,
`
`Plaintiff,
`
`vs.
`
`FLEX LOGIX TECHNOLOGIES, INC., a
`Delaware Corporation; DEJAN
`MARKOVIC, PH.D., an individual; and
`CHENG C. WANG, PH.D., an individual,
`
`Defendants.
`
`
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`
`
`Case No. 5:18-cv-07581-LHK
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`OPPOSITION TO PLAINTIFF'S MOTION TO WITHDRAW AS COUNSEL
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`Case 5:18-cv-07581-LHK Document 45 Filed 03/27/19 Page 2 of 5
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`I.
`
`INTRODUCTION
`Defendant Flex Logix Technologies, Inc. (“Flex Logix”) respectfully submits this
`memorandum in opposition to the motion by counsel for plaintiff Konda Technologies, Inc.
`(“Konda Tech”) to withdraw as counsel. Dkt. 44. Counsel’s motion provides no
`substantive rationale for the request to withdraw. Moreover, counsel’s proposed order will
`prejudice defendant Flex Logix and benefit Konda Tech, by delaying the resolution of
`defendants’ motions to dismiss the First Amended Complaint and by allowing Konda Tech
`over 100 days in which to prepare an opposition to defendants’ motions to dismiss. Finally,
`Konda Tech’s counsel acted in bad faith by not informing defense counsel about the
`withdrawal for three full weeks, from March 4, 2019 to March 25, 2019, during which time
`defense counsel: (1) prepared and filed the motion to dismiss the First Amended Complaint
`(at significant cost to Flex Logix); (2) agreed, at the request of plaintiff’s counsel, to accept
`service of process for the two new individual defendants (the founders of Flex Logix); and
`(3) devoted significant time to preparing the Initial Case Management Statement, due today.
`The Court should deny the motion.
`ARGUMENT
`II.
`Counsel For Konda Tech Has Not Provided A Legally Sufficient
`A.
`Rationale For Withdrawing As Counsel
`
`The California Rules of Professional Conduct outline several reasons for permissive
`withdrawal, including that the client refuses to pay the lawyer’s bills, or the client insists
`upon presenting a claim that is not supported by the law, or the client seeks to pursue an
`illegal course of conduct. See Rule 1.16(b)(1)-(3). Plaintiff’s counsel does not rely on any
`of those rationales and instead cites Rule 1.16(b)(4), which allows withdrawal (with the
`Court’s consent) if a client’s conduct “renders it unreasonably difficult” for the lawyer to
`represent the client. Neither counsel’s declaration nor the motion describe the purportedly
`difficult conduct in question, even in vague terms. Counsel also cites to Rule 1.16(b)(5),
`which allows counsel to withdraw (with the Court’s consent) if the client has breached a
`material term of the engagement agreement. Again, neither counsel’s declaration nor the
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`Case No. 5:18-cv-07581-LHK
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`OPPOSITION TO PLAINTIFF'S MOTION TO WITHDRAW AS COUNSEL
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`Case 5:18-cv-07581-LHK Document 45 Filed 03/27/19 Page 3 of 5
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`motion explains, even in vague terms, the nature of the purported breach, although the
`motion does acknowledge that the client, Konda Tech, does not agree that it has materially
`breached that agreement. Dkt. 44-1 at 3:7-8.
`The Court cannot grant this motion without understanding “the reason counsel seeks
`to withdraw.” Sebastian Brown Prods. LLC v. Muzooka Inc., No. 15-CV-01720-LHK, 2016
`WL 9115950, at *2 (N.D. Cal. Aug. 23, 2016). Judge Armstrong denied counsel’s motion
`to withdraw in similar circumstances in BSD, Inc. v. Equilon Enterprises, LLC, No. C 10-
`5223 SBA, 2013 WL 942578, at *3 (N.D. Cal. Mar. 11, 2013):
`In support of its motion to withdraw, Bleau Fox did not articulate with
`sufficient specificity the reasons it seeks to withdraw. Rather, Bleau Fox
`simply states that the relationship between Youstine and the law firm “has
`significantly deteriorated” to the point that it is “impossible” for the firm to
`“take the necessary litigation strategies and steps to continue to diligently
`pursue and protect [Youstine’s] best interests.” Bleau ¶ 4; Fox Decl. ¶ 3.
`. . .
`While the Court recognizes that Bleau Fox is concerned, and rightly so,
`about disclosing attorney-client privileged information, it nonetheless must
`provide the Court with an adequate factual basis for its request to withdraw
`as counsel of record for Youstine. This requires Bleau Fox to provide the
`Court with a general explanation of what Youstine has done that has caused
`the “significant deterioration” of the attorney client relationship, including a
`description of the nature of the “differences of opinion” and examples of
`Youstine’s failure to cooperate, e.g., failure to communicate, refusal to
`follow advice.
`
`Because plaintiff’s counsel’s motion to withdraw does not provide sufficient
`information for the Court to undertake the required analysis of the rationale for withdrawal,
`the motion should be denied. Id.1
`
`
`1 Flex Logix also notes that although counsel’s declaration states that Konda Tech
`“consents to this Motion,” Dkt. 44-2 (Singh Decl.) ¶ 7, counsel provides no declaration by
`a Konda Tech officer or employee to that effect. In any event, “the consent of the client is
`not dispositive.” Id. at *2 (quoting Robinson v. Delgado, No. CV 02-1538 NJV, 2010 WL
`3259384, at *2 (N.D. Cal. Aug. 18, 2010)).
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`Case 5:18-cv-07581-LHK Document 45 Filed 03/27/19 Page 4 of 5
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`B.
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`Counsel’s Tactics And Proposed Sudden Withdrawal Have
`Prejudiced And Will Prejudice The Defendants In This Case
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`The Court must also consider the possible prejudice caused to defendant Flex Logix
`by counsel’s withdrawal. Ibid. This is not a case where prejudice is merely possible.
`Instead, counsel’s conduct with respect to the motion to withdraw was clearly intended to,
`did, and will prejudice Flex Logix.
`Counsel for Konda Tech concedes that he notified Konda Tech on March 4, 2019,
`the same day that Konda Tech filed its First Amended Complaint, that counsel was going to
`withdraw from this case. Dkt. 44-1 at 2:19-21. Counsel also concedes that he did not notify
`Flex Logix’s counsel about the withdrawal until three weeks later, on March 25, 2019. Id.
`at 3:5-6. Indeed, counsel for Konda Tech provided a draft joint case management statement
`to Flex Logix on March 22, 2019 that made no mention of any withdrawal or the impact any
`such withdrawal might have on the case schedule.
`Counsel’s proposed order allowing withdrawal makes it clear that counsel’s three-
`week silence was intended to prejudice Flex Logix and to benefit Konda Tech. Plaintiff’s
`counsel proposes that the Court stay all proceedings in this case for ninety days. Dkt. 44-1
`at 4:23-27. That would mean that Konda Tech would have over 100 days to respond to Flex
`Logix’s motion to dismiss. That delay would also mean that a new motion hearing date
`would be required. Konda Tech should not be allowed to manipulate the briefing schedule
`in this manner.
`Moreover, in that three-week period of silence, counsel for Flex Logix prepared and
`filed a motion to dismiss the First Amended Complaint, Dkt. 38, at considerable expense to
`the client. Counsel for Flex Logix also spent hours working on the Joint CMC Statement,
`due to be filed today, March 27, 2019. In addition, at the request of Konda Tech’s counsel,
`counsel for Flex Logix agreed to accept service of the First Amended Complaint on behalf
`of Flex Logix’s two founders, Drs. Markovic and Wang, who had been added as defendants
`in the First Amended Complaint. The undersigned counsel for Flex Logix would not have
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`Case 5:18-cv-07581-LHK Document 45 Filed 03/27/19 Page 5 of 5
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`accepted service on the part of Flex Logix’s founders if counsel for Konda Tech had not
`concealed his intention to withdraw.
`Local Rule 11-5 is clear: “[c]ounsel may not withdraw from an action” unless
`“written notice has been given reasonably in advance to the client and to all other parties
`who have appeared in the case.” Civil L.R. 11-5. That did not happen. Instead, by
`concealing his plans, Konda Tech’s counsel (1) caused Flex Logix to incur substantial
`expense with respect to the motion to dismiss and the CMC statement and (2) effected
`service of the First Amended Complaint on Flex Logix’s founders.
`III. CONCLUSION
`The Court should deny counsel’s motion to withdraw and should order Konda Tech
`to respond to Flex Logix’s motion to dismiss on the schedule that the parties stipulated to
`and the Court ordered. See Dkts. 29-30. The Court should also order that counsel for the
`parties appear at the Initial Case Management Conference on April 3, 2019.
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`DATED: March 27, 2019
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`41596156.2
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`MUNGER, TOLLES & OLSON LLP
`
`By:
`/s/ Steven M. Perry
`STEVEN M. PERRY
`
`
`Attorneys for Defendants
`FLEX LOGIX TECHNOLOGIES, INC.,
`DR. DEJAN MARKOVIC and DR. CHENG WANG
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`
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