Caballero et al v. Bank of New York Mellon

Filing 23

ORDER Granting 10 Defendant's Motion to Dismiss; and ORDER TO SHOW CAUSE RE CONTEMPT. Order to Show Cause Hearing set for 10/17/2013 01:30 PM. Signed by Judge Edward M. Chen on 9/30/2013. (emcsec, COURT STAFF) (Filed on 9/30/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOSE CABALLERO, et al.,

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For the Northern District of California

United States District Court

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No. C-13-3178 EMC

Plaintiffs,
v.
THE BANK OF NEW YORK MELLON
FKA THE BANK OF NEW YORK AS
SUCCESSOR TO JPMORGAN CHASE
BANK N.A. AS TRUSTEE FOR HOLDERS
OF SAMI II TRUST 2006-AR7, et al.,

ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS; AND ORDER
TO SHOW CAUSE RE CONTEMPT
(Docket No. 10)

Defendant.
___________________________________/

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On May 31, 2013, Plaintiffs Jose Caballero and Angelica Caballero, represented by attorney,

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Linda Z. Voss, filed in San Mateo County Superior Court a complaint against Defendant, The Bank

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of New York Mellon. Defendant removed this action to the Northern District, and on July 17, 2013,

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filed a Motion to Dismiss Plaintiffs’ Complaint (the “Motion”). The hearing was set for September

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26, 2013. Plaintiffs did not file an opposition or statement of non-opposition by the filing deadlines

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set forth in Local Rule 7-3.

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It then came to the Court’s attention that on June 3, 2013 Judge Alsup of the Northern

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District suspended Counsel Voss from practice in the Northern District on an interim basis pursuant

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to Local Rule 11-7(b)(1) and issued an order to show cause why a suspension should not be entered.

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See In the Matter of Linda Z. Voss, 3:13-mc-80120-WHA, Docket No. 1. Counsel did not respond.

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On July 8, 2013, Judge Alsup entered an order of suspension. See id. at Docket No. 3. Counsel

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failed to provide the Court in this action with notice of her suspension.

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On September 3, 2013, the Court issued an order (the “Order”), ordering Counsel Voss to

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notify Plaintiffs that she has been suspended from practice before the Court and to serve on

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Plaintiffs a copy of both Defendant’s Motion to Dismiss and the Order. See Docket No. 22.

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Counsel was also directed to provide the Court with Plaintiffs’ contact information. The Court gave

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Counsel seven days to file with the Court a declaration that she complied with the Order. The Order

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stayed the Motion to determine whether Plaintiffs would be allowed to file an opposition.

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Counsel Voss has failed to comply with the Order. Nor has Counsel otherwise contacted the

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Court. In other cases in the Northern District, Counsel apparently failed to notify the presiding

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courts of her suspension and disregarded orders to show cause for failure to prosecute. See, e.g.,
Flores v. Wells Fargo Bank, N.A., 3:13-cv-02410-JSC; Pagtalunan v. E Trade Bank, 4:13-cv-1335-

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For the Northern District of California

United States District Court

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PJH; Granite Ranch Opportunities, LLC v. Hecker, 3:13-cv-02966-WHO.

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Counsel Voss is ORDERED TO APPEAR AND SHOW CAUSE on October 17, 2013 at

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1:30 p.m., Courtroom 5, 17th Floor, 450 Golden Gate Avenue in San Francisco why the Court

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should not hold Counsel in contempt for failure to comply with the Court’s Order. Counsel shall

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also show cause why the Court should not refer her to the California State Bar for failure to notify

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the relevant courts and her clients of her suspension, and to take steps to ensure her clients are

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adequately represented by counsel.1

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On September 23, 2013, Judge Corley referred Voss to the State Bar. See Flores v. Wells
Fargo Bank, N.A., 3:13-cv-02410-JSC (Docket No. 15) (“Given Counsel Voss’s repeated failures to
comply with this Court’s Orders and her apparent failure to comply with her professional and ethical
responsibilities to provide competent representation to her clients, and keep her clients informed
about significant developments in this and likely other actions, the Court hereby refers Counsel
Linda Z. Voss, California State Bar No. 111434, to the State Bar of California.”).

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In light of the above, Defendant’s Motion to Dismiss is GRANTED and the case is
dismissed without prejudice.
This order disposes of Docket No. 10.

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IT IS SO ORDERED.

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Dated: September 30, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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For the Northern District of California

United States District Court

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