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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMES W SCHUBERT,
Plaintiff,

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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.
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On February 8, 2017, Plaintiff James W. Schubert brought the instant suit against

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Defendants The Bank of New York Mellon and Bank of America, N.A., asserting claims for quiet

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title and declaratory relief. (Dkt. No. 1-1.) Plaintiff also filed a motion for preliminary injunction

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to enjoin a trustee's sale for the pendency of the action. Defendants subsequently filed a motion to

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dismiss the case, based on res judicata. (Dkt. No. 14.) On June 14, 2017, the Court granted

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Defendants' motion to dismiss, but granted Plaintiff leave to file an amended complaint within

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twenty-one days, to add claims based on an alleged breach of the settlement agreement. (Dkt. No.

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42 at 18.) The Court also ordered the parties to meet and confer and stipulate to a briefing

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schedule on Plaintiff's motion for preliminary injunction. (Id.) On June 28, 2017, the parties

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stipulated to a briefing schedule, with Plaintiff's moving papers due by July 10, 2017, Defendants'

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opposition due by July 19, 2017, and Plaintiff's reply due by July 24, 2017. (Dkt. No. 43.) The

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Court granted the stipulation, and set the hearing date on Plaintiff's motion for preliminary

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injunction for September 7, 2017. (Dkt. No. 44.)

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Plaintiff did not file an amended complaint or his motion for preliminary injunction.

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Instead, on July 13, 2017, Plaintiff filed a request that the Court amend its dismissal order to deny

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leave to amend, "in order to facilitate the finality of judgment" and allow Plaintiff "to seek

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appellate review of the Court's determination that Defendants are entitled to dismissal of the

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claims articulated against them by way of his complaint." (Dkt. No. 45 at 1-2.)

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The Court DENIES Plaintiff's request because Plaintiff provides no legal basis for

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amending the dismissal order to deny leave to amend. Instead, the proper procedure is for Plaintiff

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to "obtain an appealable judgment by 'filing in writing a notice of intent not to file an amended

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complaint.'" Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064 (9th Cir. 2004) (quoting WMX

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Techs., Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir. 1997) (internal modification omitted); see

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also Lopez v. City of Needles, 95 F.3d 20, 22 (9th Cir. 1996) ("Unless a plaintiff files in writing a

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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

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United States District Court
Northern District of California

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dismissing all claims with prejudice under Federal Rule of Civil Procedure 12(b)(6), which allows

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the case to be appealed. Edwards, 356 F.3d at 1064.

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Thus, pursuant to Edwards, Plaintiff may file a notice of intent not to file an amended

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complaint, at which point the Court will dismiss all claims with prejudice and enter a final

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judgment.

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IT IS SO ORDERED.
Dated: July 14, 2017
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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