Schubert v. The Bank of New York Mellon et al

Filing 47

ORDER Denying 45 Request to Amend Dismissal Order. Signed by Judge Kandis A. Westmore on 7/14/2017. (kawlc2, COURT STAFF) (Filed on 7/14/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JAMES W SCHUBERT, Plaintiff, 8 9 10 11 Case No. 17-cv-00856-KAW ORDER DENYING REQUEST TO AMEND DISMISSAL ORDER v. THE BANK OF NEW YORK MELLON, et al., Re: Dkt. No. 45 United States District Court Northern District of California Defendants. 12 13 On February 8, 2017, Plaintiff James W. Schubert brought the instant suit against 14 Defendants The Bank of New York Mellon and Bank of America, N.A., asserting claims for quiet 15 title and declaratory relief. (Dkt. No. 1-1.) Plaintiff also filed a motion for preliminary injunction 16 to enjoin a trustee's sale for the pendency of the action. Defendants subsequently filed a motion to 17 dismiss the case, based on res judicata. (Dkt. No. 14.) On June 14, 2017, the Court granted 18 Defendants' motion to dismiss, but granted Plaintiff leave to file an amended complaint within 19 twenty-one days, to add claims based on an alleged breach of the settlement agreement. (Dkt. No. 20 42 at 18.) The Court also ordered the parties to meet and confer and stipulate to a briefing 21 schedule on Plaintiff's motion for preliminary injunction. (Id.) On June 28, 2017, the parties 22 stipulated to a briefing schedule, with Plaintiff's moving papers due by July 10, 2017, Defendants' 23 opposition due by July 19, 2017, and Plaintiff's reply due by July 24, 2017. (Dkt. No. 43.) The 24 Court granted the stipulation, and set the hearing date on Plaintiff's motion for preliminary 25 injunction for September 7, 2017. (Dkt. No. 44.) 26 Plaintiff did not file an amended complaint or his motion for preliminary injunction. 27 Instead, on July 13, 2017, Plaintiff filed a request that the Court amend its dismissal order to deny 28 leave to amend, "in order to facilitate the finality of judgment" and allow Plaintiff "to seek 1 appellate review of the Court's determination that Defendants are entitled to dismissal of the 2 claims articulated against them by way of his complaint." (Dkt. No. 45 at 1-2.) 3 The Court DENIES Plaintiff's request because Plaintiff provides no legal basis for 4 amending the dismissal order to deny leave to amend. Instead, the proper procedure is for Plaintiff 5 to "obtain an appealable judgment by 'filing in writing a notice of intent not to file an amended 6 complaint.'" Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064 (9th Cir. 2004) (quoting WMX 7 Techs., Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir. 1997) (internal modification omitted); see 8 also Lopez v. City of Needles, 95 F.3d 20, 22 (9th Cir. 1996) ("Unless a plaintiff files in writing a 9 notice of intent not to file an amended complaint, such dismissal order is not an appealable final decision"). Once Plaintiff has filed his notice of intent, the Court may enter a final judgment 11 United States District Court Northern District of California 10 dismissing all claims with prejudice under Federal Rule of Civil Procedure 12(b)(6), which allows 12 the case to be appealed. Edwards, 356 F.3d at 1064. 13 Thus, pursuant to Edwards, Plaintiff may file a notice of intent not to file an amended 14 complaint, at which point the Court will dismiss all claims with prejudice and enter a final 15 judgment. 16 17 IT IS SO ORDERED. Dated: July 14, 2017 __________________________________ KANDIS A. WESTMORE United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 2

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