Bautista v. Washington Mutual et al

Filing 26

ORDER Following Initial Case Management Conference. Court DISMISSES CASE WITH PREJUDICE. Signed by Magistrate Judge Wayne D. Brazil on 5/22/09. (wdblc2, COURT STAFF) (Filed on 5/22/2009)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA FLORANTE BAUTISTA, Plaintiff, v. WASHINGTON MUTUAL BANK, et al. Defendants. ____________________________/ On May 20, 2009, the Court convened for an initial case management conference in this action. Defendants' counsel appeared by telephone. No appearance was made by or on behalf of plaintiff. As recounted on the record, proceedings thus far can be summarized as follows. On February 10, 2009, plaintiff filed his Complaint at Common Law for Damages and Equitable Relief. At the time the case was filed the Court's computer case assignment system assigned a case number to plaintiff's action and immediately issued an "Order Setting Initial Case Management Conference and ADR Deadlines." This Order scheduled an initial case management conference for May 20, 2009, at 4:00 p.m. See, Order, filed February 10, 2009. Plaintiff's Complaint is almost impenetrable, and it was the subject of a Motion to Dismiss filed by defendants. On March 12, 2009, defendants served plaintiff with their Motion to Dismiss by mailing a copy of the Motion to plaintiff's address, 234
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No. C 09-596 WDB ORDER FOLLOWING INITIAL CASE MANAGEMENT CONFERENCE

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Morton Drive, Daly City, California, 94015. See Proof of Service attached to Motion. Defendants' Motion expressly notified plaintiff that the Court would conduct a hearing on April 27, 2009, in connection with the Motion. On March 19, 2009, the Court's staff served the parties with a notice advising the parties that they needed to consent to the Magistrate Judge's jurisdiction or request reassignment to a District Judge.1 This Notice instructed the parties to make an election by April 6, 2009. Clerk's Notice, filed March 19, 2009. Both parties responded. On April 3, 2009, plaintiff filed a copy of his Consent to Proceed Before a Magistrate Judge. This document appears to be signed by plaintiff.2 On April 7, 2009, the Court served an Order alerting plaintiff that he had not filed a timely opposition to defendant's Motion to Dismiss and giving plaintiff additional time, until April 13, 2009, to file his opposition. On April 13, 2009, the deadline set by the Court, plaintiff filed a Response to the Motion to Dismiss. It is noteworthy that this document was signed by plaintiff, that is, the document bears the same signature as the Complaint and Consent to Proceed Before a Magistrate Judge. Plaintiff failed to appear at the hearing on April 27, 2009. On April 28, 2009, the Court issued an order directing plaintiff to file with the Court and serve on defendants a statement explaining why he did not appear at the April 27th hearing. The Court instructed plaintiff that he was to file his explanation by May 7, 2009 or the Court would dismiss his Complaint with prejudice. See, Conditional Order Dismissing With Prejudice Complaint filed February, 10, 2009, filed April 28, 2009. On May 4, 2009, plaintiff responded to the Court's April 28th Order by filing a document styled "Motion for Reconsideration in Support of Plaintiffs, Non
All documents mailed by the Court to plaintiff have been mailed to plaintiff's reported address, 234 Morton Drive, Daly City, California 94015.
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Plaintiff's Consent to Proceed bears the same signature as that on the Complaint.
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Appearance on Scheduled Hearing on April 27, 2009 2:30 PM." Plaintiff alleged that he was out of the country on an "emergency business trip" between March 10, 2009 and April 25, 2009 and that he did not have notice of the hearing until April 27, 2009 at 4:00 p.m., after the hearing had concluded. This document bears the same signature reflected on all documents previously filed by plaintiff. It is not obvious to us how plaintiff might have filed documents signed by him on April 3rd and April 13th if he was out of the country at that time. Because of the apparent tension between his explanation for failing to appear at the April 27th hearing and his having filed signed documents on April 3rd and 13th, the Court submitted a subsequent order directing plaintiff to file by May 12, 2009, an explanation for this tension. See, Order, filed May 5, 2009. The Court also warned plaintiff that if he did not file a response to the Court's May 5th Order, the Court would dismiss his Complaint with prejudice. Additionally, on May 1, 2009, after receiving the Court's Conditional Order dismissing his complaint but before sending the Court his May 4th explanation for failing to appear at the hearing on defendants' Motion to Dismiss, plaintiff filed a document styled "Notice of Appeal." On May 7, 2009, the Court of Appeals acknowledged this filing. Plaintiff filed his appeal prematurely as this Court had not yet entered a final order disposing of the action. It is possible that plaintiff did not appear at the May 20, 2009, initial case management conference because he believed that this Court no longer had jurisdiction over his case in light of his appeal. However, a few days after filing his appeal plaintiff filed a document with this Court asking the court to "reconsider" its conditional order of dismissal (filed May 4th). This May 4th document suggests that, as of that date, plaintiff believed that this Court continued to have jurisdiction in this matter. Plaintiff's Complaint fails to articulate a judicially cognizable right, and plaintiff has failed to appear in this Court on multiple occasions and failed to respond to the Court's May 5th Order.
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Accordingly, for the reasons stated in this and prior orders, the Court DISMISSES WITH PREJUDICE plaintiff's entire Complaint. IT IS SO ORDERED. Dated: May 22, 2009 WAYNE D. BRAZIL United States Magistrate Judge

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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 22, 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 22, 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

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