Bautista v. Washington Mutual et al

Filing 20

ORDER in Response to Plaintiff's May 4, 2009, Submission. Signed by Magistrate Judge Wayne D. Brazil on 5/5/09. (wdblc2, COURT STAFF) (Filed on 5/5/2009)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA FLORANTE BAUTISTA, Plaintiff, v. WASHINGTON MUTUAL BANK, et al. Defendants. ____________________________/ The Court has received plaintiff's "Motion for Reconsideration in Support of Plaintiffs, Non-Appearance on Scheduled Hearing on April 27, 2009, 2:30 PM," filed May 4, 2009. The Court has some serious questions about the accuracy of the excuse Mr. Bautista has provided to explain his failure to appear at the April 27th court proceedings. By May 12, 2009, at 4:00 p.m., Mr. Bautista must file with the Court and serve on opposing counsel a declaration signed under penalty of perjury that explains in detail the following. (1) On what date did plaintiff receive the defendants' Motion to Dismiss for Failure to State a Claim? Defendants have filed a Proof of Service indicating that this document was mailed to Mr. Bautista on March 12, 2009, to 234 Morton Dr., Daly City, California 94015. If Mr. Bautista No. C 09-596 WDB ORDER IN RESPONSE TO PLAINTIFF'S MAY 4, 2009, SUBMISSION

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contends that he did not receive this document until after March 19, 2009 (i.e., within one week after mailing), then plaintiff must explain the circumstances that resulted in his not receiving the document until after that date. (2) Mr. Bautista asserts that he was out of the country from March 10, 2009 until April 25, 2009. If plaintiff was out of the country during this period how was plaintiff able to sign and file (a) plaintiff's Consent to Magistrate Judge jurisdiction, filed April 3, 2009, and (b) plaintiff's Response to Show Cause of Substantiality, filed April 13, 2009? (3) Plaintiff's April 3rd filing appears to have been filed in response to this Court's Clerk's Notice requiring the parties to consent or request reassignment by April 6, 2009. See, Clerk's Notice, filed March 19, 2009. Plaintiff's April 13th filing appears to have been filed in response to this Court's Order extending plaintiff's deadline for filing an opposition to defendants' Motion to Dismiss until April 13, 2009. See, Order re Pending Motion to Dismiss, filed April 7, 2009. The Court mailed both the Clerk's Notice and the Court's Order re Pending Motion to Dismiss to plaintiff during the period he claims to have been out of the country. Nonetheless, plaintiff was able to respond in a timely manner to both of these directives from the Court. If plaintiff contends that he did not receive defendants' Motion to Dismiss, mailed to plaintiff in Daly City on March 12th, (see item (1) above) or that he received it but was unable to respond to it, explain why plaintiff received and was able to respond to the directives from the Court that were mailed to the same address during the same period. // // // //

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If plaintiff chooses not to respond to this Order or if the Court finds that plaintiff's response to this Order is clearly insufficient to accurately explain his failure to appear at this Court's April 27th proceedings, the Court WILL DISMISS plaintiff's complaint WITH PREJUDICE for the reasons stated in this Court's Conditional Order Dismissing With Prejudice Complaint Filed February 10, 2009, filed April 28, 2009. IT IS SO ORDERED. Dated: May 5, 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: May 5, 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 May 5, 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