Randle v. Wells Fargo Bank, NA et al

Filing 19

ORDER DISCHARGING ORDER TO SHOW CAUSE AND ISSUING FURTHER ORDER RE SUBJECT MATTER JURISDICTION AND VACATING HEARING DATE. Motions terminated: 6 MOTION to Dismiss. Signed by Judge Jeffrey S. White on 01/17/2013. (tmi, COURT STAFF) (Filed on 1/17/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SHERENE RANDLE,

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For the Northern District of California

United States District Court

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No. C 12-06031 JSW

Plaintiff,

ORDER DISCHARGING ORDER
TO SHOW CAUSE AND ISSUING
FURTHER ORDER RE SUBJECT
MATTER JURISDICTION AND
VACATING HEARING DATE

v.
WELLS FARGO BANK NA,
Defendant.
/

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On January 8, 2013, this Court issued an Order to Show Cause why this case should not

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be dismissed for failure to prosecute. Plaintiff has filed a timely response to that Order, in

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which she advises the Court that she intended to amend her complaint, pursuant to Federal Rule

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of Civil Procedure 15(a)(1)(B), and explains the reasons for failing to do so in the time required

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by Rule 15. Defendant, Wells Fargo Bank, N.A. (“Wells Fargo Bank”) opposes Plaintiff’s

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request, and argues Plaintiff has not shown good cause for leave to amend under Rule 15(a)(2).

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The Court has considered Plaintiff’s request and Wells Fargo’s opposition thereto, and it

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discharges the Order to Show Cause without imposing sanctions. The Court DENIES the

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pending motion to dismiss without prejudice (Docket No. 6), and it VACATES the hearing date

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scheduled for February 8, 2013.

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The Court notes that there may be an issue as to whether it has subject matter

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jurisdiction over this action. Defendant Cal-Western Reconveyance Corporation (“Cal-

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Western”) is a non-diverse defendant, and it has not filed a declaration of non-monetary status.

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Wells Fargo Bank argues that Cal-Western has been fraudulently joined to defeat diversity

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jurisdiction. Plaintiff has not moved to remand, and based on the response to the Order to Show

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Cause, it appears that she did not intend to do so.

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If Plaintiff does not intend to remove Cal-Western as a Defendant, and if she disputes

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that Cal-Western is fraudulently joined, she shall file a motion to remand by January 25, 2013,

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and notice that motion for an open and available date on this Court’s civil law and motion

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calendar.

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If Plaintiff intends to remove Cal-Western as a Defendant, the Court shall grant the

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request to file an amended complaint, in light of the preference for resolving cases on their

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merits and the liberal standards of Rule 15(a)(2). Plaintiff shall file her amended complaint by

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For the Northern District of California

United States District Court

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no later than January 25, 2013.
If Plaintiff does not intend to remove Cal-Western as a Defendant but does not file a

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motion to remand, the Court shall conclude that she does not dispute that Cal-Western has been

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fraudulently joined and should be ignored for purposes of determining whether diversity

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jurisdiction exists. Again, in light of the preference for resolving cases on their merits and the

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liberal standards of Rule 15(a)(2), the Court will grant Plaintiff’s request for leave to file an

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amended complaint.

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If Plaintiff files an amended complaint, Defendants shall file a responsive pleading or
otherwise respond within twenty-one days thereafter.
IT IS SO ORDERED.
Dated: January 17, 2013
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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