Kwong et al v. Wells Fargo Bank, N.A.

Filing 38

ORDER DISMISSING CASE. Signed by Judge Lucy H. Koh on 12/13/2012. (lhklc2, COURT STAFF) (Filed on 12/13/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

United States District Court
For the Northern District of California

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SIMON Y. KWONG AND SUZANNE Y.
KWONG,

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Plaintiffs,
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v.
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WELLS FARGO BANK, N.A., AS TRUSTEE )
FOR CERTIFICATE HOLDERS OF BANC OF )
AMERICA FUNDING CORPORATION
)
MORTGAGE PASS THROUGH
)
CERTIFICATES, SERIES 2007-E,
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Defendants.
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)

Case No.: 12-CV-01362-LHK
ORDER DISMISSING CASE WITHOUT
PREJUDICE

Plaintiffs Simon Y. Kwong and Suzanne Y. Kwong (“Plaintiffs”) filed their complaint on

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March 19, 2012. ECF No. 1. According to Michael Yesk, the attorney of record, on June 29,

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2012, Plaintiffs notified Mr. Yesk via email that Plaintiffs wanted to terminate Mr. Yesk’s

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employment and to hire a new attorney. Consequently, on August 29, 2012, Mr. Yesk filed a

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Motion to Withdraw as Attorney. ECF No. 24. According to Mr. Yesk, on August 30, 2012,

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Plaintiffs again contacted Mr. Yesk and informed him that Plaintiffs no longer had substitute

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counsel and wanted Mr. Yesk’s services. According to Mr. Yesk, on November 27, 2012, Mr.

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Yesk contacted Plaintiffs and reminded them to appear at the November 29, 2012 hearing on Mr.

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Yesk’s Motion to Withdraw as Attorney. Despite this reminder, Plaintiffs failed to appear at the

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November 29, 2012 hearing.
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Case No.: 12-CV-01362-LHK
ORDER DISMISSING CASE WITHOUT PREJUDICE

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At the hearing Mr. Yesk represented that he had not provided assistance to Plaintiffs to find

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new counsel. Accordingly, the Court ordered that by December 7, 2012, Mr. Yesk file a

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declaration: (1) affirming that he had referred Plaintiffs to the Federal Legal Assistance Self-Help

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Center ("FLASH") for legal assistance (408-297-1480); and (2) explaining the steps he had taken

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to assist Plaintiffs in finding new legal representation. The Court continued the hearing on Mr.

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Yesk's Motion to Withdraw as Attorney to December 13, 2012 at 1:30 p.m. and ordered that Mr.

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Yesk and Plaintiffs attend the hearing in person.

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On November 29, 2012, the Court also issued an Order to Show Cause why this case should
not be dismissed with prejudice for failure to prosecute. The Court ordered Plaintiffs to: (1)

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United States District Court
For the Northern District of California

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respond to the Order to Show Cause by reaffirming their interest in prosecuting this case and

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explaining the status of their legal representation by December 10, 2012; (2) appear at the Order to

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Show Cause hearing on December 13, 2012 at 1:30 p.m.; and (3) file a Consent or Declination to

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Proceed Before a Magistrate Judge by December 7, 2012. The Order to Show Cause notified

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Plaintiffs that their failure to respond to the Order to Show Cause and to appear at the December

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13, 2012 hearing would result in dismissal of their case with prejudice for failure to prosecute.

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On December 11, 2012, Mr. Yesk filed a withdrawal of his motion to be relieved as

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counsel. ECF No. 36. However, because Plaintiffs had failed to respond to the Order to Show

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Cause by December 10, 2012 as ordered, and failed to file a Consent or Declination to Proceed

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Before a Magistrate Judge by December 7, 2012 as ordered, and because Mr. Yesk had failed to

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file a declaration by December 7, 2012 as ordered, the Court, on December 12, 2012, issued an

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Order stating that the withdrawal did not obviate the need for Mr. Yesk and Plaintiffs to appear for

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the December 13, 2012 hearing on the Order to Show Cause. The Court explained that consistent

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with the Order to Show Cause, Plaintiffs and Mr. Yesk were required to appear personally at the

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hearing on December 13, 2012 at 1:30 p.m., and that failure to appear would result in dismissal of

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this case with prejudice for failure to prosecute. ECF No. 37.

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Neither Plaintiffs nor Mr. Yesk appeared at the December 13, 2012 hearing. Moreover,

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Plaintiffs never filed a response to the Order to Show Cause, or a consent or declination to proceed

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before a Magistrate Judge. Accordingly, the Court DISMISSES this case. However, in an
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Case No.: 12-CV-01362-LHK
ORDER DISMISSING CASE WITHOUT PREJUDICE

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abundance of caution, in the event that Mr. Yesk did not clearly communicate the Court’s Orders to

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his clients, the dismissal is without prejudice. The Clerk shall close the file.

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IT IS SO ORDERED.

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Dated: December 13, 2012

_________________________________
LUCY H. KOH
United States District Judge

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United States District Court
For the Northern District of California

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Case No.: 12-CV-01362-LHK
ORDER DISMISSING CASE WITHOUT PREJUDICE