Schubert v. The Bank of New York Mellon et al
Filing
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ORDER by Judge Kandis A. Westmore Dismissing Case with Prejudice; Denying 49 Ex Parte Application as Moot. (kawlc2, COURT STAFF) (Filed on 7/18/2017)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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JAMES W SCHUBERT,
Case No. 17-cv-00856-KAW
Plaintiff,
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ORDER DISMISSING CASE WITH
PREJUDICE
v.
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THE BANK OF NEW YORK MELLON, et
al.,
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Re: Dkt. No. 48
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 in the state court
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against Defendants The Bank of New York Mellon and Bank of America, N.A., asserting claims
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for quiet title and declaratory relief. (Dkt. No. 1-1.) While pending before the state court, the
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state court issued a temporary restraining order enjoining the trustee's sale set for February 15,
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2017, and set a briefing schedule for Plaintiff's motion for a preliminary injunction. (Dkt. No. 1-1
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at 43-44.1) On February 21, 2017, Defendants removed the instant case. (Dkt. No. 1.) Plaintiff
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then filed an ex parte application, seeking "clarification . . . that no trustee's sale may take place in
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the interim prior to a hearing on the merits of his request for a preliminary injunction." (Dkt. No.
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12 at 2.) The Court granted Plaintiff's ex parte application, stating that the temporary restraining
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order issued by the state court would remain in effect until the Court ruled on Plaintiff's motion for
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a preliminary injunction. (Dkt. No. 13 at 1.)
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Defendants subsequently moved to dismiss the case. (Dkt. No. 14.) On June 14, 2017, the
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Court granted Defendants' motion to dismiss, but gave Plaintiff leave to file an amended complaint
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to add claims based on an alleged breach of the settlement agreement. (Dkt. No. 42 at 18.) The
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The referenced page numbers are based on the ECF header.
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Court deferred ruling on Plaintiff's motion for a preliminary injunction, and ordered the parties to
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meet and confer and to stipulate to a briefing schedule on Plaintiff's motion for a preliminary
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injunction. (Id.) The parties stipulated to a briefing schedule accordingly. (Dkt. No. 43.)
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 to allow Plaintiff to appeal the
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Court's dismissal. (Dkt. No. 45 at 1-2.) On July 14, 2017, the Court denied Plaintiff's request,
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finding that Plaintiff provided no legal basis for amending the dismissal order. The Court
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explained that the proper procedure would be for Plaintiff to file a written notice of intent not to
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file an amended complaint, which would allow the Court to enter final judgment dismissing all
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United States District Court
Northern District of California
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claims with prejudice under Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 47 at 2.)
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On July 17, 2017, Plaintiff filed his notice of intention not to file an amended complaint.
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(Dkt. No. 48.) Accordingly, the Court DISMISSES Plaintiff's claims with prejudice under Federal
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Rule of Civil Procedure 12(b)(6), and will enter judgment in favor of Defendants and close the
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case. Because Plaintiff's action is dismissed in full and there are no underlying claims to support a
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temporary restraining order or preliminary injunction, the Court DENIES Plaintiff's motion for a
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preliminary injunction and DISSOLVES the temporary restraining order. See U.S. Philips Corp.
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v. KBC Bank N.V., 590 F.3d 1091, 1093 (9th Cir. 2010) ("A preliminary injunction imposed . . .
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dissolves ipso facto when a final judgment is entered in the ca[s]e"); see also id. at 1095
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(explaining that "the temporary restraining order and preliminary injunction dissolved when the
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default judgment issued"). The Court DENIES Defendants' ex parte application to dissolve the
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temporary restraining order as moot. (Dkt. No. 49.)
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IT IS SO ORDERED.
Dated: July 18, 2017
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge
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