Minichino v. Wells Fargo Bank, N.A.

Filing 44

ORDER SETTING BRIEFING SCHEDULE (SI, COURT STAFF) (Filed on 8/19/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MARIE MINICHINO,

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United States District Court
For the Northern District of California

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No. C 11-01030 SI

Plaintiff,

ORDER SETTING BRIEFING
SCHEDULE

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

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Defendants.

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On August 4, 2011, the Court issued an Order to Show Cause requiring plaintiff to file an

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opposition or other response to defendants’ pending motions to dismiss and strike on or before August

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12, 2011. Docket No. 39. The Court cautioned plaintiff that if she failed to comply, the Court would

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dismiss this case for failure to prosecute pursuant to Fed. R. Civ. Proc. 41(b). Id.

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On August 12, 2011, plaintiff filed a “declaration.” Docket No. 41. That declaration does not

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respond substantively to defendants’ motions, but instead asserts that plaintiff filed a bankruptcy petition

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in Honolulu, Hawaii on June 8, 2011 and this action should be stayed as a result. Id., at pg 3 of 8.1

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Plaintiff claims that she notified this Court of the pendency of the bankruptcy action – although the

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Court’s docket does not reflect any such notification – as well as defense counsel in this case.

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On August 17, 2011, defendants filed a response. Defendants argue that this case is not stayed

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as a result of plaintiff’s bankruptcy petition in Hawaii because plaintiff is a prosecuting plaintiff in this

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case. See Parker v. Bain (In re Parker), 68 F.3d 1131, 1135 (9th Cir. 1995) (noting automatic stay

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Through her declaration, plaintiff also attempts to raise a motion for sanctions against defense
counsel and add claims to her complaint. Those attempts are procedurally improper. If plaintiff wants
to seek sanctions and/or seek leave to amend her complaint, she must do so through a noticed motion
consistent with the Federal Rules of Civil Procedure and Civil Local Rule 7.

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provision applies only to action brought against debtor). Defendants also submit a copy of the docket

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from the Bankruptcy Court showing that plaintiff’s petition was dismissed with a 180-day bar to refiling

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on July 28, 2011. See Request for Judicial Notice (Docket No. 43) at Exhibit 2. The Court notes that

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on August 3, 2011, plaintiff filed a motion to reconsider the dismissal of her petition, but that motion

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has not been ruled on. Id.
Defendants suggest, that since this case is not stayed by the bankruptcy proceeding, plaintiff be

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given thirty (30) days to respond to defendants’ motions to dismiss and strike (Docket Nos. 34 & 35).

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The Court finds that this case was not and is not affected by plaintiff’s bankruptcy petition.

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Plaintiff shall file a substantive opposition or other response to defendants’ motions to dismiss and strike

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United States District Court
For the Northern District of California

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on or before September 21, 2011. If plaintiff does not file an opposition or other substantive response

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on or before that date, this Court will dismiss this case for failure to prosecute pursuant to Fed. R. Civ.

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Proc. 41(b). If plaintiff complies with this Court’s order, defendants may file a reply on or before

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October 5, 2011 and the case will be submitted for resolution on the papers.

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The Clerk shall update the Court docket for this case to include the following address for

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plaintiff: P.O. Box 796, Kihei, HI 96753. The clerk shall also update plaintiff’s phone and fax numbers

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in the Court’s docket. See Docket No. 41, pg. 6. Plaintiff is cautioned that it is her responsibility to

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notify the Court of any additional changes in her contact information.

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IT IS SO ORDERED.

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Dated: August 19, 2011
SUSAN ILLSTON
United States District Judge

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