Deck v. Wells Fargo Bank, N.A. et al

Filing 68

ORDER signed by Magistrate Judge Kendall J. Newman on 1/9/19 DENYING 66 Motion for recusal. Plaintiff's first amended complaint 65 is DISMISSED, but with leave to amend. Within 21 days of this order, plaintiff shall file a second amended complaint. Any response to the second amended complaint shall be due within 21 days of the filing of the second amended complaint. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VERNON DECK,

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No. 2:17-cv-0234-MCE-KJN PS
Plaintiff,

v.

ORDER

WELLS FARGO BANK, N.A., et al.,

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Defendants.

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Presently pending before the court is plaintiff’s motion for recusal and plaintiff’s first
amended complaint. (ECF Nos. 65, 66.)
Having carefully reviewed plaintiff’s motion for recusal (ECF No. 66), the undersigned

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finds no proper basis to recuse himself from the action. Although the Ninth Circuit disagreed

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with portions of this court’s analysis and remanded for further proceedings on plaintiff’s claims

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under the California Homeowner Bill of Rights (“HBOR”), this court is capable of considering

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such remanded claims fairly and based on the applicable law, and without bias towards any

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particular party. As such, plaintiff’s motion for recusal is denied.

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Having also carefully reviewed plaintiff’s first amended complaint (ECF No. 65), the

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court finds that it does not comply with the Ninth Circuit’s remand and the court’s subsequent

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November 28, 2018 order. (ECF Nos. 61, 63, 64.) In its memorandum decision, the Ninth
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Circuit explicitly reversed and remanded “for Deck’s claims under HBOR only.” (ECF No. 61.)

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Consequently, in its subsequent November 28, 2018 order, this court specifically instructed

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plaintiff to file a first amended complaint asserting claims under the HBOR only. (ECF No. 64.)

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Nevertheless, plaintiff’s first amended complaint asserts several additional claims, along with

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argument about why plaintiff believes additional claims should be permitted. Contrary to

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plaintiff’s contention, he is not permitted to enlarge the scope of the claims remanded, which

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violates both the Ninth Circuit’s remand as well as this court’s November 28, 2018 order.

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In light of plaintiff’s pro se status, the court declines to impose any sanctions at this
juncture, and instead provides plaintiff with another opportunity to file a compliant complaint.

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However, plaintiff is cautioned that future failure to comply with the court’s orders and/or failure

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to file a compliant complaint will result in the imposition of sanctions.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for recusal (ECF No. 66) is DENIED.

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2. Plaintiff’s first amended complaint (ECF No. 65) is DISMISSED, but with leave to

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amend.
3. Within 21 days of this order, plaintiff shall file a second amended complaint, limited

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to no more than 30 pages, that asserts only claims under the HBOR. Failure to comply

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with this order will result in the imposition of sanctions.

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4. Any response to the second amended complaint shall be due within 21 days of the
filing of the second amended complaint.
Dated: January 9, 2019

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