Park et al v. Bank of America et al

Filing 13

ORDER signed by Judge Lawrence K. Karlton on 10/18/13 ORDERING that Counsel for plaintiffs, Pamela J. Palmieri, is SANCTIONED in the amount of one hundred and fifty dollars ($150.00), payable to the Clerk of the Court within fourteen (14) da ys of docketing of this order; The hearing on defendants' motion to dismiss is CONTINUED until January 13, 2014 at 10:00 a.m; Plaintiffs are DIRECTED to file an opposition to the motion to dismiss or a statement of non-opposition no later tha n November 18, 2013. Defendants may file any reply no later than December 9, 2013; The status conference herein is CONTINUED until January 27, 2014 at 2:00 p.m. and status conference reports are due fourteen (14) days before that date. Plaintiffs are DIRECTED to serve a copy of this order on any further defendants that they may serve in this matter. (cc Financial Dept)(Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JUNG MYN PARK, MIN SOOK SUH,

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No.

CIV. S-13-1717 LKK/DAD

Plaintiffs,
v.

ORDER

BANK OF AMERICA; BANK OF
AMERICA, N.A.; BRIAN T.
MOYNIHAN, DAVID C. DARNELL;
GARY G. LYNCH; THOMAS K.
MONTAG and Does 1-XXXX, et
al.,

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Defendants.
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Pending before the court in the above-captioned case is

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defendants’ motion to dismiss, originally scheduled to be heard

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on October 21, 2013. (ECF No. 7.) Plaintiffs, represented by

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Pamela J. Palmieri, failed to file a timely opposition or

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statement of non-opposition, as required by Local Rule 230(c).

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Accordingly, this court issued an order (i) continuing the

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hearing on the motion until November 18, 2013; (ii) directing

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plaintiffs to file an opposition or statement of non-opposition

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by Monday, October 13, 2013 at 4:30 p.m.; and (iii) ordering

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counsel for plaintiffs to show cause in writing, no later than
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October 16, 2013, as to why she should not be sanctioned for her

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failure to respond to the motion in a timely manner. (ECF

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No. 29.)

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As plaintiffs failed to file an opposition or a statement of

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non-opposition, and counsel for plaintiffs failed to respond to

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the order to show cause, the court was prepared to dismiss this

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action. However, a review of the docket herein showed that

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plaintiffs had timely filed a status conference statement in

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anticipation of the Status (Pretrial Scheduling) Conference,

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currently set for November 4, 2013 at 2:00 p.m. The court

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contacted plaintiffs’ counsel and instructed her to immediately

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file a response to the order to show cause, lest her clients face

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dismissal.

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The response filed by plaintiffs’ counsel (ECF No. 12) may

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charitably be described as the lamest received by this court in

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some years. Its upshot is that counsel was unaware of the motion

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to dismiss because she did not receive a physical copy of

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defendants’ motion. Such an excuse would carry some weight in

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state court. But as Local Rule 135 makes clear, a “Notice of

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Electronic Filing” is automatically generated by the court’s

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electronic case filing system at the time a document is filed,

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and “[s]ervice via this electronic Notice constitutes service

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pursuant to Fed. R. Civ. P. 5(b)(2)(E).” Plaintiffs’ counsel has

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registered an email address with the court’s electronic case

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filing system. She has shown herself to be sufficiently competent

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to electronically file both a complaint (ECF No. 1) and a status

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report (ECF No. 11). And the fact that she timely filed a status

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report demonstrates that she both received and reviewed the
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court’s order setting a status conference herein (ECF No. 5). In

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other words, plaintiffs’ counsel should have received electronic

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notice of the motion to dismiss, and complied with the Local

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Rules as to the deadline for filing an opposition or statement of

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non-opposition.1

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While the court is strongly inclined to dismiss this action,

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it will not do so at this time, solely because it does not wish

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to forestall plaintiffs from having their day in court due to

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their counsel’s errors. Nevertheless, plaintiffs’ counsel is now

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on notice that she must henceforth diligently review her email

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and the electronic docket in this matter, and timely file all

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required documents, as the court will accept no further excuses

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going forward. Future failures of compliance may lead to

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dismissal, monetary sanctions, and/or notice to the State Bar of

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California of counsel’s failure to competently perform her

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professional duties.

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In light of the foregoing, the court hereby orders as
follows:

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[1] Counsel for plaintiffs, Pamela J. Palmieri, is

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SANCTIONED in the amount of one hundred and fifty dollars

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($150.00), payable to the Clerk of the Court within fourteen

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(14) days of docketing of this order.

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The court declines to enter an order, as requested by
plaintiffs’ counsel, to the effect that “Defendants serve
Plaintiff with all moving papers at 317 Evelyn Avenue, Roseville
CA 95678.” If plaintiffs’ counsel wishes to opt for conventional
service, she should review Local Rule 130 and make appropriate
arrangements. If she wishes technical assistance with the
electronic case filing system, she may contact the help desk at
[phone].
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[2] The hearing on defendants’ motion to dismiss is

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CONTINUED until January 13, 2014 at 10:00 a.m.

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[3] Plaintiffs are DIRECTED to file an opposition to the

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motion to dismiss or a statement of non-opposition no later

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than November 18, 2013. Defendants may file any reply no

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later than December 9, 2013.

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[4] The status conference herein is CONTINUED until January

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27, 2014 at 2:00 p.m. and status conference reports are due

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fourteen (14) days before that date. Plaintiffs are DIRECTED

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to serve a copy of this order on any further defendants that

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they may serve in this matter.

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IT IS SO ORDERED.

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DATED:

October 18, 2013.

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