UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
July 13, 2009
PRESENTACION R. HAW, AN INDIVIDUAL, PLAINTIFF,
WASHINGTON MUTUAL BANK, INDYMAC BANK, F.S.B., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., MORTGAGEIT, INC., QUALITY LOAN SERVICE CORP., AND DOES 1 TO 100, INCLUSIVE, DEFENDANTS.
The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
MEMORANDUM AND ORDER
This matter is before the court on (1) defendants' various motions, including defendant Federal Deposit Insurance Company's motion to substitute receiver and motion to dismiss (Docket #s 7 and 11), defendant MortgageIt, Inc.'s motion to dismiss and motion to strike (Docket #s 15 and 17), and defendant JPMorgan Chase Bank, N.A.'s motion to dismiss (Docket #20) and (2) an order to show cause why plaintiff should not be sanctioned in the amount of $150.00 for failing to file an opposition or notice of non-opposition to defendants' motions in compliance with Local Rule 78-230(c).*fn1
On February 12, 2009, plaintiff Presentacion R. Haw ("Haw") filed a complaint against defendants pro se. (Complaint, filed February 12, 2009.) By March 26, 2009, defendants filed the aforementioned motions. After plaintiff did not respond to the motions, on April 20, 2009, Magistrate Judge Mueller ordered:
(1) the hearing on defendants' motions continued to May 20, 2009,
(2) plaintiff was directed to file an opposition, if any, to the motions no later than April 29, 2009, and (3) any replies were to be filed no later than May 6, 2009. (Order, filed April 2, 2009.)
On April 29, 2009, plaintiff designated Richard Taguinod as counsel on her behalf. (Designation of Counsel, filed April 29, 2009.) As a result thereof, this case was referred back to the undersigned and all dates pending before Magistrate Judge Mueller were vacated. (Order, filed May 12, 2009.) On May 12, 2009, this court reset the hearing for defendants' motions for June 26, 2009, thereby rendering plaintiff's oppositions due by June 12, 2009, pursuant to Local Rule 78-230(c). (Minute Order, filed May 12, 2009.)
By June 12, 2009, plaintiff had not submitted an opposition or notice of non-opposition to defendants' motions. Accordingly, the court ordered plaintiff's counsel to show cause why plaintiff should not be sanctioned in the amount of $150.00 for failing to file an opposition or notice of non-opposition to defendants' motions. (Order and Order to Show Cause re: Sanctions, filed June 16, 2009 ["OSC"].)
On June 24, 2009, plaintiff's counsel filed a response to the OSC (Docket #35) and a document entitled "Urgent Manifestation with Brief Opposition to Defendants' Motions to Dismiss" (Docket #36). However, plaintiff did not provide a substantive opposition to the motions, but rather simply requested additional time to file a first amended complaint. Plaintiff's request is woefully belated. Indeed, plaintiff and her counsel have had defendants' motions for six weeks. Inexplicably, only after this court's issuance of the OSC did plaintiff request leave to file a first amended complaint.
Further, plaintiff's counsel's response to the OSC does not articulate any reason why he was unable to timely file an opposition or notice of non-opposition to defendants' motions. Rather, plaintiff's counsel lists reasons why Haw, herself, was unable to file an opposition or notice of non-opposition. However, whether Haw's personal situation precluded her from filing an opposition or notice of non-opposition is not relevant. Plaintiff is now represented by counsel. Counsel has a duty to timely respond and had adequate time to do so.
Nevertheless, in the interest of justice and the resolution of claims on their substantive merits, the court will permit plaintiff a brief period to file the requested first amended complaint. Accordingly, based on the above findings, the court hereby orders as follows:
1. Plaintiff's counsel, Richard Taguinod, shall pay the court $150.00 for failing to timely file an opposition or notice of non-opposition to defendants' motions. Said sanction shall be bore by counsel alone and shall be paid within 20 days of the date of this order.
2. Plaintiff is provided 15 days from the date of this order to file and serve a first amended complaint.
3. Defendants' pending motions are DENIED as moot.
4. Defendants are provided 30 days after service of the first amended complaint to file a response thereto.
IT IS SO ORDERED.