Case 5:18-md-02834-BLF Document 694 Filed 06/25/21 Page 1 of 4
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
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`Case No. 18-md-02834-BLF
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`ORDER CONDITIONALLY
`GRANTING MOTION TO
`WITHDRAW
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`Case No.: 5:18-cv-00767-BLF
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`Case No.: 5:18-cv-05619-BLF
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`IN RE: PERSONALWEB
`TECHNOLOGIES, LLC ET AL., PATENT
`LITIGATION
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`AMAZON.COM, INC., and AMAZON
`WEB SERVICES, INC.,
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`Plaintiffs
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`v.
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`PERSONALWEB TECHNOLOGIES, LLC
`and LEVEL 3 COMMUNICATIONS, LLC,
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`Defendants,
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`PERSONALWEB TECHNOLOGIES, LLC,
`and LEVEL 3 COMMUNICATIONS, LLC,
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`Plaintiffs,
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`v.
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`TWITCH INTERACTIVE, INC.,
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`Defendant.
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`Before the Court is Stubbs Alderton & Markiles, LLP and Theodore Maceiko of Maceiko
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`IP’s (collectively, “SAM”) Motion to Withdraw as Counsel for PersonalWeb Technologies, LLC
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`(“PersonalWeb”). Mot., ECF 688; see also Opp., ECF 691; Reply, ECF 693. For the reasons
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`discussed below, the Court CONDITIONALLY GRANTS SAM’s motion.
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`Pursuant to Civil Local Rule 11–5(b), counsel may not withdraw from an action until
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`relieved by order of Court after written notice has been given reasonably in advance to the client
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`and to all other parties who have appeared in the case. Civil Local Rule 11–5(b). The decision to
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`permit counsel to withdraw is within the sound discretion of the trial court. United States v. Carter,
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`Case 5:18-md-02834-BLF Document 694 Filed 06/25/21 Page 2 of 4
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`560 F.3d 1107, 1113 (9th Cir. 2009). When addressing a motion to withdraw, the consent of the
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`client is not dispositive. Robinson v. Delgado, No. CV 02–1538, 2010 WL 3259384, at *2 (N.D.
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`Cal. 2010). Rather, the court must consider factors such as the reason counsel seeks to withdraw,
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`the possible prejudice caused to the litigants, and the extent to which withdrawal may delay
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`resolution of the case. Id.
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`Additionally, Civil Local Rule 11–4(a)(1) mandates compliance with the standards of
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`professional conduct required of members of the State Bar of California. Civil Local Rule 11–
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`4(a)(1). The California Rules of Professional Conduct permit counsel to withdraw in cases where
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`the client “knowingly and freely assents” to withdrawal. Cal. Rules of Professional Conduct 3–
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`700(C)(5). Counsel must take “reasonable steps to avoid reasonably foreseeable prejudice to the
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`rights of the client, including giving due notice to the client, allowing time for employment of other
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`counsel, complying with Rule 3–700(D) [which addresses the disposition of client papers and
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`property], and complying with applicable laws and rules.” Id. 3–700(A)(2).
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`In this case, PersonalWeb does not wish for SAM to represent it in post judgment collection
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`proceedings, has discharged SAM as its counsel in any such proceedings in this action before this
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`Court, and claims that is has retained other counsel to represent it in the post judgment collection
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`proceedings. Gersh Decl. ¶¶ 2 (“PersonalWeb has discharged SAM as its counsel of record for any
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`post judgment collection proceedings”), 3 (“SAM now remains engaged as counsel for PersonalWeb
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`relating only to PersonalWeb’s appeals pending in the United States Court of Appeals for the Federal
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`Circuit”), 4 (“Richards further requested that I confirm receipt and acknowledge the limited scope
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`of SAM’s representation of PersonalWeb, which I did.”), ECF 688-1. The California Rules of
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`Professional Conduct permit withdrawal where the client “knowingly and freely assents to
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`termination of the employment.” See Cal. R. Prof. Conduct 3–700(C)(1)(5). Furthermore, the Court
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`finds that counsel has taken steps to avoid reasonably foreseeable prejudice to PersonalWeb.
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`PersonalWeb had “due notice” of SAM’s withdrawal because PersonalWeb terminated SAM on
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`April 27, 2021. Gersh Decl. ¶ 4 (“[On April 27, 2021], I received another email from Mr. Richards
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`wherein he notified me that neither myself nor anyone at SAM is authorized to do anything post
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`judgment, and that SAM was only engaged by PersonalWeb on the pending appeals.”), Exh. B at 2
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`Case 5:18-md-02834-BLF Document 694 Filed 06/25/21 Page 3 of 4
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`(“You are not authorized to do anything post judgment.”); see Cal. R. Prof. Conduct 3–700(A)(2).
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`Other than post-judgment motions—for which SAM is explicitly unauthorized to represent
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`PersonalWeb—there are no motions pending before this Court. See ECF 687; ECF 689. The Court
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`concludes that SAM, in withdrawing, has taken reasonable efforts to avoid prejudice to
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`PersonalWeb.
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`Nonetheless, the Court finds that SAM’s withdrawal presents undue prejudice to
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`Amazon.com, Inc., Amazon Web Services, Inc., and Twitch Interactive, Inc. (collectively,
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`“Amazon”). Although the Court does not find any irregularity in SAM’s conduct, it does appear that
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`PersonalWeb has acted in a manner that prejudices Amazon. In particular, the Court finds that
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`PersonalWeb appears to be thwarting Amazon’s legitimate interest in collecting its judgment. See
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`WB Music Corp. v. Royce Int'l Broadcasting Corp., No. EDCV 16-600 JGB (SPx), 2019 WL
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`11638326 (C.D. Cal. May 1, 2019) (“[T]he Court is concerned that withdrawal of Counsel would
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`result in undue delays to the execution of judgment. Since the entry of judgment, Defendants have
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`engaged in a pattern of delay.”); Wyman v. High Times Prods., Inc., No. 2:18- cv-02621-TLN-EFB,
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`2020 WL 6449236, at *3 (E.D. Cal. Nov. 3, 2020) (“[I]t is clear that Plaintiff will be prejudiced by
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`granting Spanos's motion [to withdraw]. Defendant's payment to Plaintiff is long overdue. Allowing
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`Spanos to withdraw without identifying a substitution of counsel will inevitably delay Plaintiff's
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`payment even further. Such delay will likely increase Plaintiff's costs associated with pursuing the
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`settlement payment.” (internal citations omitted)); see also Opp. at 1 (“prejudicing Amazon in its
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`collection efforts is precisely the point of the withdrawal” (emphasis in original)). While
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`PersonalWeb has apparently retained alternate counsel to defend itself during the post-judgment
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`phase of the case, newly retained counsel has refused to appear despite the fact that the Court has
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`issued a post-judgment discovery order and several related motions are pending. ECF 664; ECF
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`687; ECF 689; see Gersh Decl., Exh. A at 4 (Email from Ronald Richards to Amazon counsel stating
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`that “[o]ur firm is going to be retained in the next day or two to handle any post judgment matters
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`you bring.”). It appears that PersonalWeb is manipulating the situation by claiming that SAM is not
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`authorized to represent it in post-judgment proceedings while stalling on having its new attorney
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`file an appearance. See Gersh Decl., Exh. A at 2 (Email from Ronald Richards to Amazon counsel
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`Case 5:18-md-02834-BLF Document 694 Filed 06/25/21 Page 4 of 4
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`stating that “[w]e are now engaged FYI but you haven’t done anything yet that requires our
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`representation.”). This manipulation, along with the chameleon-like efforts of Personal Web to use
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`this time to make itself judgment proof, amount to a concerted effort to thwart collection of the
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`judgment ordered by this Court. See Opp. at 6; Gregorian Decl. ¶ 7. Personal Web has the right to
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`counsel of its choosing, but it cannot take actions or inaction to stand in the way of the judicial
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`process.
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`The Court CONDITIONALLY GRANTS SAM’S Motion to Withdraw. SAM may
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`withdraw upon notice of appearance by Ronald Richards, PersonalWeb’s counsel for post-judgment
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`matters.
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`IT IS SO ORDERED.
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`Dated: June 25, 2021
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`______________________________________
`BETH LABSON FREEMAN
`United States District Judge
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