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Wells Fargo Bank, National v. Association; Cal-Western

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


July 7, 2011

WELLS FARGO BANK, NATIONAL
PLAINTIFF,
v.
ASSOCIATION; CAL-WESTERN
RECONVEYANCE CORPORATION; AND DOES 1-50, INCLUSIVE,
DEFENDANTS.

ORDER RE: MOTIONS

On June 10, 2011, the Court denied the motion by Plaintiff Nader Shaterian ("Plaintiff") for a preliminary injunction barring the foreclosure sale of his Mill Valley, California home. ECF No. Bank, National Association ("Wells Fargo") and Cal-Western Reconveyance Corporation ("Cal-Western") to meet and confer and file a joint statement addressing how the scheduled June 17, 2011 foreclosure sale would affect Plaintiff's pending Motion to Remand and Wells Fargo's pending Motions to Dismiss and to Strike. Id.

The parties inform the Court that on June 16, 2011, Plaintiff filed a Chapter 13 Petition in the U.S. Bankruptcy Court for the Northern District of California, No. 11-12286. This stayed the scheduled foreclosure sale to July 18, 2011.

NADER SHATERIAN,

52. The Court ordered the Plaintiff and Defendants Wells Fargo

The parties have now filed this joint statement. ECF No. 54.

action to proceed. Plaintiff argues that the "most efficient and 3 appropriate" is for the Court to grant Plaintiff thirty days' leave 4 to amend his complaint, asserting that "the arguments presented by 5 the parties already provide guidance as to which claims require 6 more specificity, which claims are likely to be preempted, and 7 which claims continue to be viable." Plaintiff states that he 8 would remove his California Civil Code claims, add new claims, and 9 modify other claims. This course of action would moot Wells 10

Remand.

Motions to Dismiss and to Strike and instead order the parties to 14 file, in sixty days, an updated joint statement discussing whether 15 and to what extent developments in the bankruptcy action and 16 elsewhere impact the motions pending in this Court. Wells Fargo 17 argues that granting Plaintiff leave to file an amended complaint 18 now, "prior to ruling on the motions to dismiss and to strike, 19 would result in unnecessary delay."

follows: The Court GRANTS Plaintiff's request for thirty days' 22 leave to amend his complaint. Because this ruling renders Wells Remand moot, the Court DENIES both Motions. If Plaintiff fails to 25 amend his complaint during this time frame, the Court will dismiss 26 this action WITH PREJUDICE on the basis of Plaintiff's failure to 27 prosecute. 28

This will be the third complaint filed in this action. Any

The parties disagree as to the most efficient method for this Fargo's Motions to Dismiss and Strike and Plaintiff's Motion to

United States District Court For the Northern District of California Wells Fargo asks the Court to postpone any rulings on its

Having considered the parties' statement, the Court rules as Fargo's Motions to Dismiss and to Strike and Plaintiff's Motion to claims dismissed on a subsequent motion to dismiss will be 2 dismissed WITHOUT LEAVE TO AMEND. The Court will only grant 3 additional leave to amend if Plaintiff files a motion under Rule 15(a)(2) of the Federal Rules of Civil Procedure establishing that 5 justice so requires.

Furthermore, the Court puts Plaintiff and his attorney on notice that under 28 U.S.C. § 1927, "[a]ny attorney . . . who so 8 multiplies the proceedings in any case unreasonably and vexatiously 9 may be required by the court to satisfy personally the excess 10 costs, expenses, and attorneys' fees reasonably incurred because of such conduct." The Court may impose such sanctions sua sponte. Pacific Harbor Capital, Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1118 (9th Cir. 2000). If Plaintiff makes any frivolous 14 arguments in his amended complaint or pleads any clearly meritless 15 claims, he and his counsel may be subject to sanctions under 28 U.S.C. § 1927, Federal Rule of Civil Procedure 11, the Court's local rules, and the Court's inherent power.

IT IS SO ORDERED.

UNITED STATES DISTRICT JUDGE United States District Court For the Northern District of California

20110707

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