Palce v. JP Morgan Chase Bank National Association et al

Filing 40

ORDER by Judge Hamilton Denying 39 Motion for Reconsideration (pjhlc2, COURT STAFF) (Filed on 4/24/2012) (Additional attachment(s) added on 4/24/2012: # 1 Certificate/Proof of Service) (nah, COURT STAFF).

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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DELIA S. PALCE,
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Plaintiff(s),

No. C 11-2932 PJH

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v.
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ORDER DENYING MOTION
FOR RECONSIDERATION

JP MORGAN CHASE BANK, et al.,
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Defendant(s).
_______________________________/

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For the Northern District of California

United States District Court

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Before the court is plaintiff’s motion for reconsideration filed pursuant to Fed. R. Civ.
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P. 60(b)(1) and (6) on April 20, 2012. The original complaint in this matter was first
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dismissed by Judge Fogel on August 16, 2011. The dismissal was with leave to amend
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although the order of dismissal noted that plaintiff had failed to file any timely opposition to
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the motion to dismiss. Plaintiff filed a first amended complaint (“FAC”) on September 13,
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2011, and the case was reassigned to the undersigned judge on September 27, 2011.
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Defendants moved to dismiss and/or to strike the FAC and to expunge the lis pendens on
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September 30, 2011, and noticed all motions for hearing on January 11, 2012. Plaintiff’s
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oppositions were due according to the court’s local rules, on October 14, 2011. Plaintiff
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again failed to meet the deadline. Plaintiff did, however, file an opposition to all motions on
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October 28, 2012. Plaintiff did not appear for the hearing on January 11, 2012. The court
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heard argument at the hearing, considered all the briefs, including plaintiff’s late-filed briefs
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and granted the motion to dismiss and motion to expunge, and denied the motion to strike.
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The current motion is based upon plaintiff’s presumption that the motion to
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dismiss was granted based on her1 failure to file her opposition briefs on time and on her

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While plaintiff’s name appears to be female, the motion for reconsideration refers to
plaintiff as both a “he” and a “she” and given plaintiff’s failure to attend the hearing, the court
has not met plaintiff.

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failure to attend the hearing. She argues against the imposition of dismissal as a sanction

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for these two failures. However, plaintiff is mistaken. The court read and considered

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plaintiff’s three untimely opposition briefs notwithstanding that she had previously missed

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the filing deadline as noted in Judge Fogel’s August 16, 2011 order. Moreover, a party is

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not required, though it is advisable, to appear at a hearing on a motion to dismiss. The

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court fully considered the merits of defendants’ motion and did not dismiss the FAC as a

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sanction, but rather dismissed it on the merits. Leave to amend to file a third amended

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complaint was not granted given that plaintiff had already been afforded an opportunity to

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amend and in the court’s finding that amendment would be futile.

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For the Northern District of California

United States District Court

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As plaintiff’s motion for reconsideration does not address the merits of her case or
raise any ground for reconsideration cognizable under Rule 60(b), it is DENIED.
IT IS SO ORDERED.
Dated: April 24, 2012
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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