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

Filing 19

ORDER by Judge Lucy H. Koh granting 11 Motion to Dismiss; vacating Hearing on Order to Show Cause; continuing Initial Case Management Conference (lhklc3, COURT STAFF) (Filed on 3/30/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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EDWIN HANNON and BRANDIE
HANNON,

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Case No.: 14-CV-05381-LHK
ORDER VACATING HEARING ON
ORDER TO SHOW CAUSE,
GRANTING MOTION TO DISMISS
WITH LEAVE TO AMEND, AND
CONTINUING CASE MANAGEMENT
CONFERENCE

Plaintiffs,
v.

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WELLS FARGO BANK, N.A.,
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Defendant.
Plaintiffs Edwin and Brandie Hannon (“Plaintiffs”), with the assistance of counsel, filed

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their amended complaint in Monterey County Superior Court on November 6, 2014. ECF No. 1-1

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Ex. A. Defendant Wells Fargo Bank, N.A., successor by merger with Wells Fargo Bank

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Southwest, N.A., f/k/a Wachovia Mortgage, FSB, f/k/a World Savings Bank, FSB (“Wells Fargo”)

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received service of process on November 7, 2014. ECF No. 1 at 5. On December 8, 2014, Wells

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Fargo removed the instant case to federal court. Id. at 6.

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On January 5, 2015, Wells Fargo filed a Motion to Dismiss Plaintiffs’ lawsuit, arguing,

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inter alia, that Plaintiffs’ claims are barred by the doctrine of judicial estoppel and by the

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applicable statutes of limitations. ECF No. 11. Pursuant to Civil Local Rule 7-3(a), Plaintiffs’

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Case No.: 14-CV-05381-LHK
ORDER VACATING HEARING ON ORDER TO SHOW CAUSE, GRANTING MOTION TO DISMISS WITH
LEAVE TO AMEND, AND CONTINUING CASE MANAGEMENT CONFERENCE

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Opposition to the Motion to Dismiss was due on January 20, 2015.1 Plaintiffs filed none. As a

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result, on March 16, 2015, the Court issued an Order for Plaintiffs to show cause why this case

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should not be dismissed for failure to prosecute. ECF No. 15.
Pursuant to the Court’s Order to Show Cause, Plaintiffs filed a response on March 26,

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2015. ECF No. 17. In that response, Plaintiffs’ counsel explained that he had experienced heart

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problems beginning in November 2014. Id. at 2. While the Court appreciates the medical

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challenges facing Plaintiffs’ counsel, the Court notes that Plaintiffs’ counsel says he realized he

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had not filed an Opposition on February 16, 2015—a full month before the Court issued its Order

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to Show Cause. Id. at 4. In that time period, Plaintiffs’ counsel never alerted the Court of his
medical condition or asked for an extension of time to file an Opposition, as he was obligated to

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United States District Court
Northern District of California

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do.

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In light of the foregoing, the Court declines to dismiss Plaintiffs’ lawsuit for failure to

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prosecute and hereby VACATES the hearing on the Order to Show Cause set for April 2, 2015, at

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1:30 p.m. However, pursuant to Civil Local Rule 7-1(b), the Court hereby GRANTS Wells

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Fargo’s Motion to Dismiss with leave to amend and VACATES the hearing on the Motion to

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Dismiss set for April 9, 2015, at 1:30 p.m. Plaintiffs are hereby on notice of the alleged

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deficiencies with their Complaint that Wells Fargo has identified in its Motion to Dismiss. Should

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Plaintiffs elect to file an amended Complaint, Plaintiffs shall do so within thirty (30) days of the

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date of this Order. Failure to meet the thirty-day deadline to file an amended Complaint or failure

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to cure the deficiencies identified by Wells Fargo in its Motion to Dismiss will result in a

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dismissal with prejudice of Plaintiffs’ claims. Plaintiffs may not add new causes of action or

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parties without leave of the Court or stipulation of the parties pursuant to Rule 15 of the Federal

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Rules of Civil Procedure.

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January 19, 2015, was a federal holiday.
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Case No.: 14-CV-05381-LHK
ORDER VACATING HEARING ON ORDER TO SHOW CAUSE, GRANTING MOTION TO DISMISS WITH
LEAVE TO AMEND, AND CONTINUING CASE MANAGEMENT CONFERENCE

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The Court hereby CONTINUES the initial case management conference set for April 9,

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2015, at 1:30 p.m. to June 17, 2015, at 2:00 p.m.

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IT IS SO ORDERED.

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Dated: March 30, 2015
______________________________________
LUCY H. KOH
United States District Judge

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United States District Court
Northern District of California

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Case No.: 14-CV-05381-LHK
ORDER VACATING HEARING ON ORDER TO SHOW CAUSE, GRANTING MOTION TO DISMISS WITH
LEAVE TO AMEND, AND CONTINUING CASE MANAGEMENT CONFERENCE