Moran v. Washington Mutual Bank

Filing 13

ORDER REFERRING ATTORNEY TO STANDING COMMITTEE ON PROFESSIONAL CONDUCT. Signed by Judge Nathanael M. Cousins on 11/13/2012. (nclc2, COURT STAFF) (Filed on 11/13/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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DEMETRIO MORAN,
Plaintiff,

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Case No. 12-cv-04974 NC

v.
WASHINGTON MUTUAL BANK,
JPMORGAN CHASE BANK, N.A.,
Defendants.

ORDER REFERRING
ATTORNEY WENDELL J.
JONES TO STANDING
COMMITTEE ON
PROFESSIONAL CONDUCT
Re: Dkt. Nos. 9, 10

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On October 31, 2012, this Court issued an order requiring plaintiff’s counsel,

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Wendell J. Jones, to show cause why he should not be sanctioned for his failure to file an

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opposition or statement of nonopposition to defendants’ motion to dismiss. Dkt. No. 8.

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In his response to that order, Jones stated that he intended to file an amended

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complaint prior to the motion to dismiss hearing as “[i]t was my understanding that I

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could file the First Amended Complaint as a matter of right any time before the hearing

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date and I planned on filing it this week.” Dkt. No. 10. Jones was incorrect in this

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assertion. Federal Rule of Civil Procedure 15(a)(1) allows a party to amend a pleading

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once “as a matter of course” within 21 days after service of a responsive pleading or

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motion under Rule 12(b), (e), or (f), whichever is earlier. Fed. R. Civ. P. 15(a)(1)(B).

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Under Rule 15(a)(1), plaintiff’s last day to file an amended complaint as a matter of right

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was October 26, 2012.
Case No. 12-cv-04974 NC
ORDER REFERRING ATTORNEY
TO STANDING COMMITTEE

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In his response, Jones further stated “I never file cases in Federal Court and if I

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have misunderstood the pleading rules, I sincerely apologize but I must re-iterate that I

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have not abandoned my client here and I was in no way trying to waste the courts time

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and ignore the court’s rules/order.” Dkt. No. 10. The Court notes that since 2010, Jones

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has appeared on behalf of clients in at least 48 cases in the U.S. District Court for the

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Northern District of California alone. See N.D. Cal. ECF.

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As stated in the Court’s initial order to show cause, this case appears to be just

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one of many in which attorney Jones has failed to respond to motions to dismiss or other

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court orders. In previously filed mortgage cases in this District and others, Jones has

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repeatedly failed to prosecute actions he filed on behalf of clients. See, e.g., Villar v.

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Bank of America Corp., No. 10-cv-1910-KJM KJN (E.D. Cal. filed July 20, 2010) (Jones

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failed to file an opposition or notice of nonopposition to defendant’s motion to dismiss in

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compliance with E.D. Cal. R. 230(c); court issued an order to show cause as to why

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Jones should not be sanctioned; Jones did not respond to that order); Khan v. World

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Savings Bank, FSB, No. 10-cv-04057 EJD, 2011 U.S. Dist. LEXIS 2442, 2011 WL

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90765, at *1 (N.D. Cal. January 11, 2011) (Jones failed to file an opposition or statement

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of nonopposition to defendants’ motion to dismiss; failed to respond to the order to show

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cause or appear at the order to show cause hearing; Jones ordered to pay $1,000 in

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sanctions and to report the sanction to the state bar); Rodriguez v. Bank of America

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Corp., No. 11-cv-05134 TEH (N.D. Cal. filed October 19, 2011) (Jones filed no

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response to defendant’s motion to dismiss the first amended complaint; Jones did not

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respond to the order to show cause as to why the case should not be dismissed; after the

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court ordered Jones to appear before it and warned that if he failed, “the Court may order

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the United States Marshal to locate Mr. Jones and bring him before the Court,” Jones

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assured the court that he has “the utmost respect for the judicial system and will make

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sure that this type of oversight doesn’t happen in the future.”).

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In a recent case before this district, Zepeda v. Bank of America Corp., 12-cv03098 JSC (N.D. Cal. filed June 15, 2012), Jones again failed to file an opposition or
Case No. 12-cv-04974 NC
ORDER REFERRING ATTORNEY
TO STANDING COMMITTEE

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statement of nonopposition to defendants’ motion to dismiss and failed to respond to the

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court’s order to show cause why the case should not be dismissed. See id., Dkt. No. 17.

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After issuance of a second order to show cause for why sanctions should not be imposed,

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Jones appeared at a hearing and represented that he would change his behavior. See id.,

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Dkt. No. 25. Magistrate Judge Corley ordered that, “while no sanctions will be imposed

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at this time, the Court cautions Mr. Jones that his continuing cases in this district will be

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monitored, and should he again fail to respond to motions or court orders, he will be

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referred to the Standing Committee on Professional Conduct, the Chief Judge, or another

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appropriate disciplinary authority in the Northern District (see L.R. 11-6 (a)) without

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another hearing or any further notice.” Id., Dkt. No. 25.
Although these other matters are not a basis for imposing monetary sanctions in

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this case, the Court is concerned that Jones has engaged in a troubling pattern and

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practice of failure to follow the Local Rules and to represent his clients professionally.

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As this Court has cause to believe that attorney Jones has engaged in unprofessional

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conduct for his repeated failures to abide by court orders and rules, the Court refers

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attorney Jones to the Standing Committee on Professional Conduct for the United States

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District Court for the Northern District of California for further investigation. See Civil

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L.R. 11-6(a)(4). The clerk must also provide a copy of this order to Chief Judge Claudia

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Wilken.

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IT IS SO ORDERED.

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DATED: November 13, 2012
____________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

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Case No. 12-cv-04974 NC
ORDER REFERRING ATTORNEY
TO STANDING COMMITTEE

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