Bautista v. Washington Mutual et al

Filing 18

CONDITIONAL Order Dismissing With Prejudice Complaint Filed February 10, 2009 by Magistrate Judge Wayne D. Brazil conditionally granting 6 Motion to Dismiss. (wdblc2, COURT STAFF) (Filed on 4/28/2009)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA FLORANTE BAUTISTA, Plaintiff, v. WASHINGTON MUTUAL BANK, et al. Defendants. ____________________________/ On February 10, 2009, plaintiff Florante Bautista filed his "Complaint at Common Law." On March 3, 2009, defendants filed their Motion to Dismiss plaintiff's Complaint for failure to state a claim ("Motion"). Defendants' Motion explicitly notified plaintiff that, on April 27, 2009, at 2:30 p.m., the Court would conduct a hearing in connection with defendants' Motion. See, Notice of Motion at 1. On April 13, 2009, plaintiff filed a document that appears to respond to defendants' Motion. See, Response to Show Cause of Substantiality or a Motion to File an Affidavit in Support of Opposition to Defendants: Washington Mutual et al., Motion to Dismiss for Failure to State a Claim. On April 27, 2009, this Court conducted a hearing in connection with defendants' Motion to Dismiss plaintiff's Complaint. Plaintiff, who is proceeding with this action pro se, did not appear at the hearing. The Court's staff made multiple No. C 09-596 WDB CONDITIONAL ORDER DISMISSING WITH PREJUDICE COMPLAINT FILED FEBRUARY 10, 2009

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attempts to telephone plaintiff at the phone number provided on plaintiff's Response to Show Cause, the only phone number of record for plaintiff. The staff was unable to reach either a live person or a recorded voicemail system. The Court's staff had previously been contacted by an acquaintance of plaintiff's, Melissa Geguera. In response to a telephone call from the Court's staff to Ms. Geguera, Ms. Geguera telephoned the Court during the hearing. Ms. Geguera describes herself as a courier used by plaintiff to file documents with the Court. See, Transcript April 27, 2009 hearing. Initially, she stated that she believed plaintiff was out of town. However, when questioned by the Court, it developed that Ms. Geguera did not have a reliable basis for this assertion. Also without any reliable basis, Ms. Geguera further stated that she believed that plaintiff had not received notice of the hearing. Ms. Geguera confirmed on the record that the telephone number and address used by the Court to contact plaintiff are the only telephone number and address she has for plaintiff. Plaintiff filed a document that appears to respond to defendants' Motion to Dismiss. See, April 13th Response to Show Cause. Therefore, the Court concludes that plaintiff did receive defendants' Motion including notice that the Court would be conducting a hearing on April 27, 2009. Because the Court concludes that plaintiff received notice of the hearing, the Court further concludes that plaintiff's failure to appear at the April 27th hearing demonstrates an intent to abandon this lawsuit. Additionally, the Court FINDS that plaintiff's Complaint fails to set forth any cause of action and is insufficient to provide defendants with notice of the fundamental predicates of plaintiff's perceived claims. Because plaintiff appears to have defaulted by not attending the April 27th hearing and because, on the merits, plaintiff's Complaint is deficient, the Court CONDITIONALLY DISMISSES plaintiff's Complaint WITH PREJUDICE.1

If the Court dismisses plaintiff's Complaint "with prejudice" the Court will PROHIBIT plaintiff from filing a new complaint based on the same claims he attempted to assert in the February 10, 2009, Complaint.

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To avoid having his Complaint dismissed with prejudice, by Thursday, May 7, 2009, at 4:00 p.m., plaintiff must file with the Court and serve on defendants a writing that explains why plaintiff did not appear at the April 27, 2009 hearing. If the Court does not receive the writing described above by May 7, 2009, at 4:00 p.m., the Clerk of the Court immediately WILL DISMISS plaintiff's Complaint WITH PREJUDICE. IT IS SO ORDERED. Dated: April 28, 2009 WAYNE D. BRAZIL United States Magistrate Judge

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: April 28, 2009 Florante Bautista 234 Morton Drive Daly City, CA, 94015 Florante Bautista, Plaintiff, v.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: C 09-596 WDB CERTIFICATE OF SERVICE

Washington Mutual Bank, et al., Defendants. /

I, the undersigned, hereby certify that I am an employee in Office of the Clerk, U.S. District Court, Northern District of California. That on April 28, 2009, I SERVED a true and correct copy(ies) of the attached Order by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Richard W. Wieking, Clerk

By: Michelle Sicula, Law Clerk/Deputy Clerk