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

Filing 74

ORDER signed by Magistrate Judge Kendall J. Newman on 2/22/19 ORDERING that within 21 days of this order, plaintiff shall pay to the Clerk of Court $250.00 in monetary sanctions based on his failure to comply with the court's orders. Within 21 days of this order, plaintiff shall file either a second amended complaint that complies with the court's 1/9/2019 order, or a notice of voluntary dismissal of the action. (Kastilahn, A)

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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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Plaintiff,

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

v.

ORDER

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

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Defendants.

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On January 9, 2019, the court dismissed plaintiff’s first amended complaint, which failed

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to comply with the Ninth Circuit’s remand and this court’s November 28, 2018 order. (ECF No.

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68.) Plaintiff was granted 21 days to file a second amended complaint, limited to no more than

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30 pages, that asserts only claims under the California Homeowner Bill of Rights. (Id.) In light

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of plaintiff’s pro se status, the court declined to impose sanctions at that time, but expressly

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cautioned that future failure to comply with the court’s orders and/or failure to file a compliant

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complaint would result in the imposition of sanctions. (Id.)

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Thereafter, on January 29, 2019, not long before the second amended complaint was due,

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plaintiff filed a notice of appeal to the Ninth Circuit Court of Appeals. (ECF No. 69.) Out of an

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abundance of caution, the court then issued the following clarifying order on January 31, 2019:

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The Ninth Circuit Court of Appeals will consider plaintiff’s
interlocutory appeal on whatever schedule it deems appropriate.
However, plaintiff is cautioned that unless the Ninth Circuit issues a
formal stay, this court’s order requiring the filing of a second
amended complaint remains in full effect. Nevertheless, in light of
plaintiff’s pro se status, and in the event that plaintiff may have
delayed preparing a second amended complaint based on a belief that
a notice of appeal would automatically stay the district court action,
the court grants plaintiff a limited extension of time to file a second
amended complaint.

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(ECF No. 72.) More specifically, the court sua sponte granted plaintiff an extension until

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February 20, 2019 to file either a second amended complaint in compliance with the court’s

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January 9, 2019 order or a notice of voluntary dismissal of the action. (Id.) The court again

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cautioned that failure to file either a second amended complaint or a notice of voluntary dismissal

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by February 20, 2019 (absent a stay order issued by the Ninth Circuit) may result in the

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imposition of sanctions, including monetary sanctions and/or a recommendation that the action be

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dismissed pursuant to Federal Rule of Civil Procedure 41(b). (Id.)
Although the February 20, 2019 deadline has now passed, plaintiff failed to file either a

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compliant second amended complaint or a notice of voluntary dismissal. At this point, the court

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has considered whether the action should be dismissed. Nevertheless, in light of plaintiff’s pro se

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status and the court’s desire to resolve the action on the merits, the court first attempts lesser

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sanctions in the form of monetary sanctions. The court also provides plaintiff with one final

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opportunity to file a compliant second amended complaint.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Within 21 days of this order, plaintiff shall pay to the Clerk of Court $250.00 in
monetary sanctions based on his failure to comply with the court’s orders.

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2. Within 21 days of this order, plaintiff shall file either a second amended complaint that

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complies with the court’s January 9, 2019 order, or a notice of voluntary dismissal of

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the action.

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3. Failure to timely comply with this order will result in a recommendation that the
action be dismissed pursuant to Federal Rule of Civil Procedure 41(b).

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Dated: February 22, 2019

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