Vanorden et al v. ECP Optometry Services LLC et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Jodeci Vanorden, et al.,
Plaintiffs,
v.
ECP Optometry Services LLC, et al.,
Defendants.
No. CV-24-01060-PHX-DWL
ORDER
Pending before the Court is an ex parte motion to withdraw as counsel of record
without client consent, filed by attorneys Jason Barrat, James Weiler, and Weiler Law
PLLC and Michael Zoldan, James Burr Shields and Shields Petitti & Zoldan, PLC
(“Counsel”), who wish to withdraw from representing Gabriella Gantt, one of the two
named plaintiffs in this FLSA collective action. (Doc. 192.)
Ninth Circuit law suggests a “justifiable cause” standard applies when, as here, the
client does not affirmatively consent to the withdrawal request. Lovvorn v. Johnston, 118
F.2d 704, 706 (9th Cir. 1941) (“An attorney may not, in the absence of the client’s consent,
withdraw from a case without justifiable cause; and then only after proper notice to his
client, and on leave of the court.”). “Justifiable cause” is not a terribly demanding standard,
and the professional considerations listed in ER 1.16 will often satisfy it, so long as other
factors don’t outweigh those considerations. Gagan v. Monroe, 2013 WL 1339935, *4 (D.
Ariz. 2013) (“Factors that a district court should consider when ruling upon a motion to
withdraw as counsel include: (1) the reasons why withdrawal is sought; (2) the prejudice
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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 case.”). 	“[T]he trial court retains wide discretion in a civil case to grant or deny
counsel’s motion to withdraw.” Bohnert v. Burke, 2010 WL 5067695, *1 (D. Ariz. 2010).
“When 	ordered 	to 	do 	so 	by 	a 	tribunal, 	a 	lawyer 	shall 	continue 	representation
notwithstanding good cause for terminating the representation.” 	Ariz. R. Prof’l. Cond. ER
1.16(c).
Counsel assert that Gantt has been “unresponsive” for two weeks, failing to respond
to Counsel’s “almost daily” emails and phone calls, and that the other plaintiffs would be
prejudiced “if they were held up because of Gantt being unresponsive.” (Doc. 192 at 2.)
As a preliminary matter, although ideally clients should respond quickly to
communications from their lawyers, two weeks of unresponsiveness—especially during
what appears to be a noncrucial stage in the litigation—does not strike the Court as enough
time to resort to withdrawal without consent. 	There may be extenuating circumstances
(e.g., a recent hospitalization, an extended trip abroad, etc.) that would explain why Gantt
has not been responsive.
More 	significantly, 	Counsel 	offer 	no 	authority 	for 	the 	proposition 	that 	the
unresponsiveness of one of the two named plaintiffs in an FLSA collective action would
somehow prejudice Counsel’s ability to represent the remaining plaintiffs (both named and
opt-in) in the collective action. In the absence of any authority provided by Counsel, the
Court has conducted some independent research and has not found cases suggesting that a
named plaintiff in a collective action has the power to derail a case via a lapse in
participation. If there is case law suggesting that when there are multiple named plaintiffs
in a collective action, there needs to be a consensus between those named plaintiffs before
the attorneys for the case can take any action, such that lack of participation from any one
of those named plaintiffs stymies the whole action, it is Counsel’s burden, as the movant,
to find and cite this authority.
In the absence of authority so holding, it seems more likely that where there are
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multiple named plaintiffs and myriad opt-in plaintiffs in a collective action, and one of the
named plaintiffs cannot or does not participate during a two-week period in the litigation,
the other named plaintiff(s) continue to work with the attorneys, and the unresponsive
named plaintiff assumes (for the time being) the same position as the many other plaintiffs
who are not actively participating in discussions with the attorneys.
Indeed, in a collective action, there is no legal distinction between the named
plaintiffs and the opt-in plaintiffs. 	The seminal Ninth Circuit case regarding FLSA
collective actions is Campbell v. City of Los Angeles, 903 F.3d 1090 (9th Cir. 2018). There,
the Ninth Circuit explained that a collective action is not a “form of representative action”
and is “more accurately described as a kind of mass action, in which aggrieved workers act
as a collective of individual plaintiffs with individual cases—capitalizing on efficiencies
of scale, but without necessarily permitting a specific, named representative to control the
litigation, except as the workers may separately so agree,” such that “the result of joining
the collective is the same status in relation to the claims of the lawsuit as that held by the
original named plaintiffs.” Id. at 1105 (cleaned up).
“The collective mechanism is meant to ensure that party plaintiffs have the option
of benefitting from the efficiencies of collective litigation,” id. at 1119, and workers have
a “statutory right to proceed collectively.” Id. at 1099. Although the Court has held that
each plaintiff in a collective action has the right to choose not to be represented by the
attorneys representing the rest of the plaintiffs, Robinson v. Maricopa Cnty. Special Health
Care Dist., 696 F. Supp. 3d 769, 787 (D. Ariz. 2023), surely one of the efficiencies of
collective litigation is proceeding via common counsel. 	Thus, allowing Counsel to
withdraw as counsel for one plaintiff in a collective action without her consent may
prejudice that plaintiff’s right to enjoy the benefits of the collective litigation. Moreover,
if the result was that the suddenly unrepresented plaintiff felt it necessary to retain separate
counsel, this could potentially complicate the litigation, thereby prejudicing the other
plaintiffs, as well. 	See, e.g., Ratliff v. Pason Sys. USA Corp., 196 F. Supp. 3d 699, 702
(S.D. Tex. 2016) (acknowledging that having multiple sets of attorneys representing
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different plaintiffs in a collective action could “create managerial difficulties”); Adams v.
Inter-Con 	Sec. 	Sys., 	Inc., 	242 	F.R.D. 	530, 	541 	(N.D. 	Cal. 	2007) 	(“[Disparate
representation] would lead to confusion, inefficiency and cumbersome proceedings.”).
On this record, the justifiable cause standard is not met, and therefore Counsel’s
motion is denied without prejudice. Harris v. Diamond Dolls of Nevada, LLC, 2023 WL
6059667, *5 (D. Nev. 2023) (“As counsel has failed to show justifiable cause to withdraw
without Harris’s consent, the Court declines to grant counsel’s request because doing so
could result in injustice to Harris and further unnecessary delays in this already extensive
litigation.”). 	If Counsel choose to refile their withdrawal request, they should include a
more detailed explanation of the relevant factors bearing on whether justifiable cause
exists.
Accordingly,
IT IS ORDERED that Counsel’s motion (Doc. 192) is denied without prejudice.
Dated this 21st day of October, 2025.
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