Rebolledo v. SunTrust Mortgage, Inc. et al

Filing 19

ORDER granting in part 13 Motion to Dismiss; the First Amended Complaint is dismissed without prejudice; denying without prejudice 14 Motion for Leave to File Second Amended Complaint; within 30 calendar days from the date this order is issued, i f Plaintiff wishes to continue with this case he must either substitute in another attorney as his counsel or file a notice saying he intends to proceed pro se; Signed by Judge Larry Alan Burns on 9/20/10. (copies mailed to pla's counsel at both addresses, copy mailed to plaintiff) (kaj)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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VINCENTE

REBOLLEDO, Plaintiff,

CASE NO. 09cv1686-LAB

(BLM)

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ORDER GRANTING MOTION TO DISMISS; ORDER DENYING WITHOUT PREJUDICE LEAVE TO FILE SECOND AMENDED COMPLAINT; AND

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SUNTRUST

MORTGAGE,

INC., et aI., Defendants.

ORDER REQUIRING SUBSTITUTION OF COUNSEL
[Docket numbers 7, 13, 14.]

By agreement November 25, 2009.

of the parties,1 Plaintiff filed his first amended Defendant then moved to dismiss the FAC. because

complaint Instead

("FAC") on of opposing

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Plaintiff acknowledged it hastily. He believed

that the FAC was deficient he could amend complaint ("SAC").

his counsel was ill and and asked for

prepared

it if given an opportunity, Defendants

leave to file a second amended said he was ill, Plaintiff's during this time.

pointed out even though he in this District

counsel

had filed about eighty similar complaints

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28 II 1The amended complaint filed as Docket number 7. was accepted as filed, effectively granting the joint motion

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09cv1686

Dockets.Justia.com

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Because Plaintiff has acknowledged his complaint is deficient, it is clear the motion to dismiss must be granted at least in part. After filing of the opposition (styled as a motion for leave to file a SAC), the question before the Court was whether the FAC should be

4 II dismissed with prejudice or whether Plaintiff should be given leave to amend. Defendants, 5 II construing the motion for leave to amend as an opposition, filed a reply opposing leave to 6 7 8 9 10 11 12 II 13
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amend. Under Fed. R. Civ. P. 15, a second amended complaint is permitted only with the opposing party's consent or the Court's leave, and the Court is directed to "freely give leave when justice so requires." Leave to amend may be denied where it would be futile, would cause a defendant undue prejudice, or when it is sought in bad faith. Airlines, 603 F.3d 676, 680 (9th Cir. 2010). After the motion was fully briefed, Plaintiff's counsel notified the Court that he was unable to continue in the practice of law, had resigned from the California bar effective just Ventress v. Japan

14 II before midnight on September 14, 2010, and is attempting to notify his client of this. A copy 15 II of his letter to the Court is attached as an appendix to this order. In California, resignation 16
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is not automatic, and the Court has not yet received notice from the bar that he was See California State Bar Rule 2.37(0) ("A member's voluntary

17 II permitted to resign.

1811 resignation is effective only when it is accepted by the California Supreme Court.") As of the 19 20 21
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date of this order, the website of the State Bar of California lists him as active, suggesting his resignation has not yet been received. voluntary resignation See id., 2.37(C) ("Upon tendering his or her Supreme Court accepts or rejects the

and until the California

22 II resignation, the member is immediately enrolled as an inactive member of the State Bar of 23 24 25 26 27 28 California .... ") No matter what the outcome of this attempted resignation, it is clear Plaintiff's counsel will be unavailable in this case. Plaintiff will need to substitute in another attorney, or

proceed pro se (representing himself, instead of being represented by an attorney). In all likelihood another attorney would amend the complaint differently than Plaintiff's current counsel proposed to do. And if Plaintiff were to proceed pro se, it is unclear whether he

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09cv1686

1 could or would want to amend. In addition, the Court's instructions about amendment would 2 3 4 5 6 be tailored for a pro se litigant. Although Defendants sought dismissal without leave to amend, in view of Plaintiff's counsel's admittedly deficient performance the Court believes final dismissal at this point would be inappropriate. The motion to dismiss is therefore GRANTED IN PART and the FAC is DISMISSED WITHOUT PREJUDICE. The request for leave to amend is DENIED

7 WITHOUT PREJUDICE. 8 9 Within 30 calendar days from the date this order is issued, if Plaintiff wishes to continue with this case he must either substitute in another attorney as his counsel

10 or file a notice saying he intends to proceed pro se. Plaintiff's attorney has already 11 told the Court that Plaintiff does not speak English well, so if he intends to proceed 12 pro se, he will need to find someone to help him understand the Court's orders and 13 prepare pleadings. If Plaintiff wishes to substitute in another attorney, he should

14 promptly and diligently work to find another attorney to represent him; if he does not, 15 he should not assume he will be given more time to find one. 16 If Plaintiff substitutes in counselor proceeds pro se, the Court will assume he intends

17 to file a SAC, and will issue instructions at that time. But if Plaintiff does not do either of 18 these things within the time permitted, this action will be dismissed without leave to 19 amend. 20 21 The Clerk is directed to send a copy of this order to Plaintiff's counsel at his address as provided in the docket and at his address as provided in the appended letter, and also

22 to Plaintiff personally at the address given in paragraph 2 of the FAC.
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2511 DATED

IT IS SO ORDERED.

XXXXXXXXXX 9/20/10 /OI1-Q]~/D _ _
HONORABLE LARRY ALAN BURNS

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United States District Judge

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09cv1686

KENT C. WILSON
ATTORNEY @ LAW 696 State Street San Diego, CA 92101 619 234 5929/619 923 2677 fax [e-mail]

September 14, 2010 The Hon. Irma E. Gonzales U.S. DISTRICT COURT 140 Front Street San Diego, CA 92101
RE:

MEMBERNAME BAR NUMBER SUBJECT

KENT C. WILSON 058652 RESIGNATION

Dear Judge Gonzales: Please allow this letter to notify you and the other judges of the Southern District that effective at 11:59 pm, September 14, 2010, I have resigned as a member of the California State Bar. This is due to physical, mental and financial exhaustion. I have made every effort to keep the practice intact but a convergence of events since May 5, 2010, has worked to defeat all efforts. Unfortunately, the harder I continue trying to fix matters the more my client's cases become compromised. I have enclosed a list of what I believe to be the active cases in the Southern District. My staff is working on a volunteer basis to assist me in getting cases reassigned and the clients and courts notified. The above address in San Diego is current. I regret these circumstances and any inconvenience to the Court, opposing counsel and especially to my clients. Thank you.

Enclosure CC. Judges Hayes, Lorenz, Huff, Moskowitz, Magistrate Lewis. LtrCourts001.docx Miller Whelan, Burnes Sabraw, Benitez Sammartino, Anello and

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