Barnes v. Mortell et al

Filing 142

SECOND ORDER TO SHOW CAUSE to Plaintiff. Show Cause Response due by 8/10/2018. Signed by Judge Kandis A. Westmore on 7/27/2018. (kawlc1, COURT STAFF) (Filed on 7/27/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KRISTINE BARNES,
Plaintiff,

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United States District Court
Northern District of California

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v.

Case No. 4:14-cv-02373-KAW
SECOND ORDER TO SHOW CAUSE
TO PLAINTIFF
Re: Dkt. Nos. 139, 140

RICK MORTELL, et al.,
Defendants.

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On June 21, 2017, the Court expunged the lis pendens on the Mortell residence in The

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Woodlands, Texas. Pursuant to a stipulation of the parties and lender Wells Fargo Bank, the

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Mortells were given 180 days to market and sell the subject property, the proceeds of which would

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provide funds for the settlement and pay off the arrears on the mortgage. (See Dkt. No. 135.) On

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January 11, 2018, long after the 180 day period had passed, the undersigned issued a third joint

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status report order, and informed the parties that “[i]f performance has not occurred, the parties

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shall file joint status reports every 45 days until a dismissal is filed.” (Dkt. No. 137.) On January

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25, 2018, Plaintiff filed a status report and informed the Court that the Mortell residence had not

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sold, that it remained the only source of funds for the settlement, and that Wells Fargo Bank had

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initiated foreclosure proceedings with a sale date of March 6, 2018. (Dkt. No. 138). Plaintiff

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further represented that if the property sold at a foreclosure sale, there would be no funds to pay

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the settlement and “[t]he case would effectively end.” Id.

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On June 29, 2018, the undersigned issued a fourth status report order and an order to show

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requiring Plaintiff to file a status report by July 13, 2018 explaining whether performance has

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occurred and, if not, when it is expected, if ever. (Dkt. No. 139 at 1.) The Court provided that

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Plaintiff would be excused from filing the status report order, and the order to show cause would

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be automatically discharged should a dismissal be filed by July 13, 2018. Id. at 2.
On July 12, 2018, Plaintiff filed a status report and informed the Court that the Mortell

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residence was sold at a foreclosure sale on July 3, 2018, that there were no surplus funds, and that

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the case could be dismissed. (Dkt. No. 140.) Plaintiff did not address why she had not complied

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with the Court’s prior order to furnish regular status reports nor why sanctions in the amount of

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$250.00 should not be imposed against counsel personally. See id.

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On July 13, 2018, the Court issued an order instructing Plaintiff to file a dismissal with
prejudice within 7 days. To date, Plaintiff has not done so, and Plaintiff’s counsel’s telephone

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number of record is disconnected. Accordingly, the Court issues a SECOND ORDER TO SHOW

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CAUSE to Plaintiff to explain why she has not filed the dismissal as ordered. Failure to respond to

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United States District Court
Northern District of California

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the second order to show cause by August 10, 2018 will result in the case being dismissed with

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prejudice for failure to prosecute.

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Plaintiff shall immediately furnish Mr. Mortell with a copy of this order.

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IT IS SO ORDERED.

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Dated: July 27, 2018
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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