Petrey v. Wells Fargo Bank, N.A.

Filing 17

ORDER signed by District Judge Troy L. Nunley on 7/13/17, ORDERING that Plaintiff's 14 ex parte application to consolidate or in the alternative issue a TRO staying the state court proceedings is DENIED. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ARTHUR PETREY,

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No. 2:17-cv-00503-TLN-DB

Plaintiff,
v.

ORDER DENYING EX PARTE
APPLICATION

WELLS FARGO BANK N.A., a national
association,
Defendant.

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This action involves a foreclosure sale of real property, located at 27517 Edwards Ave.,

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Escalon, CA, 95320. (See Compl., ECF No. 1.) Plaintiff Arthur Petrey (“Plaintiff”) filed an ex

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parte application to consolidate the instant action and a state court action pending in San Joaquin

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County Superior Court. (ECF No. 14) In the alternative, Plaintiff seeks an “order allowing a

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hearing on shortened notice for their motion to consolidate cases and a temporary restraining

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order and order to show cause halting further action in the UD Action.” (ECF No. 14 at 2.)

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In the first instance, Plaintiff seeks to consolidate the instant action with a pending state

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court action denominated Wells Fargo Bank N.A. v. Arthur Petrey, et al., Case No. MAN-CV-

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LUDR-2017-00349. In support of this argument, Plaintiff cites to California Civil Code of

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Procedure § 1048, which allows courts to consolidate actions for the purposes of judicial

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economy when they are sufficiently related. However, Federal Rule of Civil Procedure 42 is the
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equivalent federal rule governing consolidating cases in federal court. Plaintiff fails to explain

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why the Court would apply the California procedural law rather than Federal Rule of Civil

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Procedure 42. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (a federal court exercising

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diversity jurisdiction must apply the substantive law of the state in which it sits except on

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procedural issues and on matters governed by the United States Constitution or federal statutes).

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Even so, neither California Code of Civil Procedure § 1048 nor Federal Rule of Civil Procedure

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42 permits the Court to consolidate the given actions. Both rules specify that a court may

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consolidate actions before it, necessarily implying an initial requirement that the actions be in the

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same court in order to consolidate. This appears to be an attempt to put an unusual spin on

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removal for which no authority has been offered. Indeed, it is far from clear that the state court

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action could be removed. Plaintiff has not demonstrated the Court would have original

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jurisdiction over the state court case and the Court will not conduct a sua sponte review where no

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such argument is made. In short, the Court is aware of no legal bases allowing a federal court to

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pluck an action out of state court because it suits the Court or because the Court thinks it would

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be better for everyone if it did.

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In order to resolve all issues, the Court will also discuss Plaintiff’s alternative request for a

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temporary restraining order staying the state court action. The instant request is subject to the

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Anti-Injunction Act, 28 U.S.C. § 2283, which provides: “[a] court of the United States may not

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grant an injunction to stay proceedings in a State court except as expressly authorized by Act of

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Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”

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28 U.S.C. § 2283. Unless the sought-after injunction “falls within one of [the] three specifically

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defined exceptions” the Anti-Injunction Act serves as an “absolute prohibition against enjoining

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state court proceedings.” Atl. Coast Line R. Co. v. Bhd. of Locomotive Engineers, 398 U.S. 281,

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286 (1970). “[E]xceptions to the Anti-Injunction Act must be construed narrowly and doubts as

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to the propriety of a federal injunction against a state court proceeding should be resolved in favor

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of permitting the state action to proceed.” Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987).

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Plaintiff has made no effort to show any of these exceptions apply. Consequently, the Court

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cannot find a stay is warranted or that Plaintiff is entitled to a TRO.
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For the above stated reasons, Plaintiff’s ex parte application to consolidate or in the
alternative issue a TRO staying the state court proceedings (ECF No. 14) is hereby DENIED.
IT IS SO ORDERED.
Dated: July 13, 2017

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Troy L. Nunley
United States District Judge

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