Keppler et al v. Bank of New York Mellon

Filing 29

ORDER signed by Magistrate Judge Deborah Barnes on 6/4/18 ORDERING that the 6/7/18 hearing of Defendants' Motion to Dismiss 18 , is CONTINUED to 7/13/2018 at 10:00 AM in Courtroom 27 (DB) before Magistrate Judge Deborah Barnes. Plaintiffs are ordered to appear, telephonically or in person, at the 7/13/18 hearing. No further continuations will be granted and a plaintiff's failure to appear may be deemed withdrawal of opposition to granting defendants' Motion to Dismiss; On or before 6/29/18, Plaintiffs shall file any request for leave to file a second amended complaint. Plaintiffs are cautioned that the failure to timely comply with this order may result in a recommendation that this case be dismissed. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES KEPPLER and KIFUMI
KEPPLER,

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Plaintiffs,

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No. 2:17-cv-2232 MCE DB PS

ORDER

v.
THE BANK OF NEW YORK MELLON,
et al.,

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Defendants.

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Plaintiffs James Keppler and Kifumi Keppler, proceeding pro se, commenced this action

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on October 25, 2017, by filing a complaint and paying the required filing fee. (ECF No. 1.) On

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March 6, 2018, plaintiffs filed an amended complaint. (ECF No. 17.) On March 23, 2018,

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defendants filed a motion to dismiss. (ECF No. 18.) That motion is set for hearing before the

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undersigned on June 7, 2018. (ECF No. 27.)
However, on May 31, 2018, plaintiffs filed a waiver of oral argument. (ECF No. 28.)

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Plaintiffs are advised that under no circumstances will the undersigned grant plaintiffs’ request to

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waive the hearing of oral argument of defendants’ motion. 1 Moreover, the failure of a party to

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Nor would the undersigned grant defendants’ request for waiver of oral argument of plaintiffs’
motion.
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appear at a noticed hearing “may be deemed withdrawal . . . of opposition to the motion, . . . or

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may result in the imposition of sanctions.” Local Rule 230(i). In this regard, if either plaintiff

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fails to appear at the hearing of defendants’ motion to dismiss, the undersigned may deem that a

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withdrawal of that plaintiff’s opposition to the motion to dismiss.

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Nonetheless, plaintiffs’ filing also represents that plaintiff James Keeper will be out of the

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state of California and unable to appear telephonically prior to June 8, 2018. (ECF No. 28 at 2.)

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Moreover, plaintiffs intend to “request . . . leave to file” a second amended complaint prior to

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June 30, 2018. (Id.) Plaintiffs are advised that Rule 15(a) of the Federal Rules of Civil Procedure

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“is very liberal and leave to amend shall be freely given when justice so requires.”

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AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quotation

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omitted); see also Fed. R. Civ. P. 15(a) (“The court should freely give leave when justice so

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requires.”). However, courts “need not grant leave to amend where the amendment: (1)

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prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in the

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litigation; or (4) is futile.” Id. The “court’s discretion to deny leave to amend is particularly

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broad where the court has already given the plaintiff an opportunity to amend his complaint.”

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Fidelity Financial Corp. v. Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1438 (9th

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Cir. 1986).

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Accordingly, IT IS HEREBY ORDERED that:

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1. The June 7, 2018 hearing of defendants’ motion to dismiss (ECF No. 18) is continued

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to Friday, July 13, 2018, at 10:00 a.m., at the United States District Court, 501 I Street,

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Sacramento, California, in Courtroom No. 27, before the undersigned;

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2. Plaintiffs are ordered to appear, telephonically or in person, at the July 13, 2018

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hearing. No further continuations will be granted and a plaintiff’s failure to appear may be

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deemed withdrawal of opposition to granting defendants’ motion to dismiss;

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3. On or before June 29, 2018, plaintiffs shall file any request for leave to file a second
amended complaint 2; and
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Plaintiffs are advised that Local Rule 137(c) requires that the proposed amended complaint
must be attached as an exhibit to the request for leave to amend.
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4. Plaintiffs are cautioned that the failure to timely comply with this order may result in a

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recommendation that this case be dismissed.

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DATED: June 4, 2018

/s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE

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