Omega et al v. Wells Fargo & Co.,

Filing 44

ORDER (1) DENYING EX PARTE APPLICATION FOR ORDER TO SHORTEN TIME; (2) DIRECTING PLAINTIFFS COUNSEL TO SHOW CAUSE WHY MONETARY SANCTIONS SHOULD NOT BE IMPOSED; (3) DIRECTING PLAINTIFFS TO FILE A MOTION TO REMAND; (4) VACATING HEARING ON MOTIONS TO DISMISS AND TO STRIKE AND VACATING CASE MANAGEMENT CONFERENCE. Signed by Judge Jeffrey S. White on 12/2/11. (jjoS, COURT STAFF) (Filed on 12/2/2011)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9

ORDER:

Plaintiffs,

11
For the Northern District of California

United States District Court

10

12

No. C 11-02621 JSW

FLORENCIO L. OMEGA, et al.,

(1) DENYING EX PARTE
APPLICATION FOR ORDER TO
SHORTEN TIME

v.
WELLS FARGO & CO., et al.,

13

(2) DIRECTING PLAINTIFFS’
COUNSEL TO SHOW CAUSE
WHY MONETARY SANCTIONS
SHOULD NOT BE IMPOSED;

Defendants.

14
15

(3) DIRECTING PLAINTIFFS TO
FILE A MOTION TO REMAND;

16

(4) VACATING HEARING ON
MOTIONS TO DISMISS AND TO
STRIKE AND VACATING CASE
MANAGEMENT CONFERENCE

17
18
19
/
20

On December 1, 2011, Plaintiffs filed an Ex Parte Application for an Order to Shorten

21
22

Time, in which Plaintiffs ask that the Court hear a motion for Rule 11 sanctions in conjunction

23

with Defendants’ motions to dismiss and to strike. The Court DENIES Plaintiffs’ ex parte

24

application. If Plaintiffs wish to file such a motion, they shall notice it in accordance with the

25

Northern District Civil Local Rules on an open and available date on this Court’s calendar.

26

//

27

//

28

//

1

On November 9, 2011, this Court issued an Order to Show Cause directing Plaintiffs to

2

show cause why this case should not be dismissed for failure to prosecute. The Court issued

3

that order because Plaintiffs, for the second time in this case, failed to file a timely response to

4

motions filed by the Defendants. On November 14, 2011, Plaintiffs filed their response to the

5

Order to Show Cause. Plaintiffs’ explanation for their failure to file a timely response to

6

Defendants’ motion is that the Court lacks subject matter jurisdiction over this action. The

7

Court finds Plaintiffs’ response insufficient. If Plaintiffs believed this Court lacked jurisdiction,

8

the proper procedure would have been to file a motion to remand, which Plaintiffs still have not

9

done, or to raise the issue of subject matter jurisdiction in opposition to either of Defendants’
motions to dismiss. Therefore, Plaintiffs’ counsel IS HEREBY ORDERED TO SHOW

11
For the Northern District of California

United States District Court

10

CAUSE why sanctions in the amount of $500.00 should not be imposed for failing to comply

12

with this Court’s deadlines and to diligently prosecute this case. Counsel’s response shall be

13

due by no later than December 9, 2011.

14

The Court also determines that it must resolve the question of subject matter jurisdiction

15

before reaching the pending motions. Defendant Wells Fargo Bank, N.A. removed this case

16

and, in its notice of removal, argued that Wells Fargo & Co. was a sham defendant. As the

17

Court noted in its Order resolving the Defendants’ first motion to dismiss, Plaintiffs did not

18

dispute that Wells Fargo Bank was the proper party to be sued. (See Docket No. 37.) Plaintiffs

19

also did not take the position that the Court lacked subject matter jurisdiction. The Court stated

20

that “[a]s such, the Court is satisfied that it has jurisdiction in this action.” (Id. (Order at 2 n.1).)

21

Contrary to Defendants’ argument in their response to the Order to Show Cause, the Court did

22

not find that Wells Fargo & Co. was, in fact, a sham defendant. Plaintiffs again name Wells

23

Fargo & Co. as a Defendant in their First Amended Complaint. Wells Fargo & Co. is a non-

24

diverse defendant. Thus, if it is not a sham defendant, the Court lacks subject matter

25

jurisdiction over this action. The Court finds this issue of whether Wells Fargo & Co. is a sham

26

defendant is not adequately briefed.

27
28

Accordingly, Plaintiff is HEREBY ORDERED to file a motion to remand by no later
than December 23, 2011. Defendants’ response to the motion to remand shall be due by
2

1

January 9, 2012. Plaintiffs’ reply shall be due by January 16, 2012. Unless the Court

2

determines a hearing is necessary, it shall resolve the matters on the papers.

3

The Court VACATES the hearing on Defendants’ motion to dismiss and to strike and

4

the case management conference scheduled for December 9, 2011, pending resolution of

5

Plaintiffs’ motion to remand. The Court shall issue a further briefing schedule on those motions

6

if necessary.

7
8

IT IS SO ORDERED.
Dated: December 2, 2011
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3