Winding v. Wells Fargo Bank, et. al.

Filing 37

ORDER CLOSING CASE And Related Orders, signed by Chief Judge Anthony W. Ishii on 9/29/2011. CASE CLOSED.(Fahrney, E)

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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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JACOB WINDING dba Top to Bottom
Cleaning Service,

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Plaintiff,
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v.
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WELLS FARGO BANK, N.A., a
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National Association; CAL-WESTERN )
RECONVEYANCE, a California
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corporation; and DOES 1 through 100, )
inclusive,
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Defendants.
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____________________________________)

CV F 11 - 0555 AWI SKO
ORDER CLOSING CASE AND
RELATED ORDERS

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On June 27, 2011, the court filed a memorandum opinion and order dismissing
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Plaintiff’s complaint and ordering that any amended complaint be filed not later than twenty19
one days from that date (hereinafter, the (“June 27 Order”). The twenty-one day period for
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filing of an amended complaint expired not later than July 22, 2011. No amended complaint
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has been filed as of this writing. Perhaps improvidently, the court requested that Defendants
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notify the court if no amended complaint was filed and served within the twenty-one day
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period and request the court close the case. The court’s June 27 Order also notified Plaintiff
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that any requests for extension of time to file an amended complaint would be “strongly
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disfavored.”
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On July 29, 2011, Defendants noticed a motion to dismiss for failure to obey an order
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of the court pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and scheduled a
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hearing on the motion to dismiss for September 9, 2011, before the Magistrate Judge. On

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September 12, 2011, the court continued the hearing date until October 3, 2011, and

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transferred the hearing to Judge Ishii. On September 23, 2011, Plaintiff filed a motion to

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continue the hearing on Defendants’ motion to dismiss until Thursday, October 13, 2011.

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Hearing on Plaintiff’s motion to continue is also scheduled on October 3, 2011. Defendants

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oppose the request for extension of time.

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The current spate of motions and oppositions has taken on procedural dimensions not

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originally intended by the court. It was the court’s intent merely to be reminded when the

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twenty-one day time period had passed so that an order administratively closing the case

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could be filed. It was not the court’s intention to instigate a series of derivative motions that

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do not get at the substantive issues presented by the court’s June 27 Order. At issue, from the

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court’s perspective, is (1) whether Plaintiff is, or has been, able to secure representation

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since, as previously pointed out by the Magistrate Judge, he is not entitled to represent the

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partnership that nominally instituted this action, and (2) whether Plaintiff has identified any

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legal theory that would not be summarily dismissed pursuant to the June 27 Order. There is

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nothing before the court to indicate that Plaintiff has addressed, or can address, either of the

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issues identified by the court in its June 27 Order.

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In consideration of the foregoing, it is hereby ORDERED that:
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Plaintiff’s motion to extend time for response to Defendants motion to dismiss is

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hereby STRUCK as impertinent because Plaintiff lacks capacity to represent Top To

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Bottom Cleaning Services, a partnership.

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Defendants’ motion to dismiss is hereby construed by the court as notice of Plaintiff’s

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failure to Amend within the twenty-one days permitted by the court and as a request

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to close the case.

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All currently set hearing dates are hereby VACATED.

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Any currently unresolved motions are hereby DENIED as moot.

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The Clerk of the Court shall CLOSE THE CASE. The Clerk of the Court shall

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ENTER JUDGMENT in favor of DEFENDANTS.
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Should Plaintiff seek to file and serve any motion for reconsideration or motion to

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reopen this action on any ground, Defendants are hereby ORDERED to not respond to

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any pleading by Plaintiff unless ordered to do so by the court.

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IT IS SO ORDERED.

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Dated:
0m8i78

September 29, 2011
CHIEF UNITED STATES DISTRICT JUDGE

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