Leonares v. Wells Fargo Bank, et al

Filing 15

ORDER signed by Senior Judge Lawrence K. Karlton on 10/15/10 ORDERING Counsel for Plaintiff is sanctioned $150.00 do no later than 30 days from the date of this Order; GRANTING 6 Motion to Dismiss; ORDERING plaintiff to file an Amended Complaint within 7 days. (Williams, D)

Leonares v. Wells Fargo Bank, et al

Doc. 15

1 2 3 4 5 6 7 8 9 GLORIA LEONARES, 10 NO. CIV. S-10-2012 LKK/KJM 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Defendants. / This is an action to enjoin foreclosure on plaintiff's home. Plaintiff alleges that defendants violated RESPA while brokering a refinance of her home in Vallejo, CA, that defendants negligently misrepresented the character of the transaction and breached their fiduciary duty to plaintiff. The case was originally filed in Solano County Superior court. Defendant Wells Fargo removed the case to federal court and has filed a motion to dismiss. The motion was originally set for hearing on October 12, 2010, but plaintiff did not timely file an opposition or a notice of non-opposition. 1
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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Plaintiff, v. ORDER WELLS FARGO BANK, N.A.; WESTERN RECONVEYANCE CORPORATION; and DOES 1 to 100, inclusive,

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This court ordered plaintiff's counsel, to show cause why sanctions should not issue and why the case should not be dismissed based on plaintiff's failure to file an opposition or statement of nonopposition to the motion to dismiss. The order also continued the hearing to October 25, 2010, and directed the plaintiff to file and serve an opposition or statement of non opposition on or before October 11, 2010. Order, October 4, 2010, ECF No. 11.

Plaintiff's counsel timely responded to the order to show cause, but has still not filed an opposition or statement of nonopposition to the motion to dismiss. In the response to the order to show cause, plaintiff's counsel indicated that he planned to file an amended complaint, but that a family emergency prevented him from doing so by the court's deadlines. Counsel did not explain how his family emergency prevented him from filing an opposition or statement of non-opposition, and has therefore not shown cause for why sanctions should not issue. To this date, plaintiff has

not filed for leave to amend the complaint, nor has plaintiff filed an opposition to defendant's motion to dismiss. However, the Federal Rules of Civil Procedure instruct courts to "freely give leave [to amend pleadings] when justice so requires." Fed. R. Civ. P. 15 (a)(2). For this reason, the court construes plaintiff's response to the order to show cause as a motion for leave to file an amended complaint. The court grants the motion for leave. Plaintiff shall file his amended complaint within seven (7) days of the issuance of this order. //// 2

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The court therefore ORDERS as follows: [1] Counsel for plaintiff is SANCTIONED in the amount of one hundred and fifty ($150.00) dollars. This sum shall be paid to the Clerk of the Court no later than thirty (30) days from the date of this order. Counsel shall file an affidavit accompanying the payment of this sanction which states that it is paid personally by counsel, out of personal funds, and is not and will not be billed, directly or indirectly, to the client or in any way made the responsibility of the client as

attorneys' fees or costs. [2] Wells Fargo's motion to dismiss, ECF No. 6, is GRANTED. [3] The court construes ECF No. 12, plaintiff's response to the order to show cause, as a motion for leave to amend and the court GRANTS plaintiff leave to amend the complaint. [4] Plaintiff is ORDERED to file an amended complaint within seven (7) days of issuance of this order. Failure to timely file an amended complaint will result in all claims against Wells Fargo being dismissed. IT IS SO ORDERED. DATED: October 15, 2010.

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