United States District Court, N.D. California, San Francisco Division
February 6, 2014
TUPOU NETANE, Plaintiff,
WELLS FARGO BANK, NA F/K/A/ WORLD SAVINGS BANK, FSB; THE BANK OF NEW YORK AS TRUSTEE FOR SECURITIZED TRUST WORLD SAVINGS BANK MORTGAGE PASS-THROUGH CERTIFICATES REMIC 30 TRUST; AND DOES THROUGH 100, Defendants.
ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED
NATHANAEL M. COUSINS, Magistrate Judge.
Airene Williamson and The Williamson Law Office, PLLC ("WLO"), who unsuccessfully sought to withdraw as counsel for plaintiff Tupou Netane, have made multiple representations leading the Court to believe that plaintiff Tupou Netane passed away. See, e.g., Dkt. Nos. 33, 36, 39, 40. The Court previously ordered Airene Williamson and WLO to show cause (1) why the "Notice of Voluntary Dismissal of Action" they filed on January 8, 2014, purportedly on behalf of plaintiff Tupou Netane, should not be stricken as an improper filing due to the fact that plaintiff is dead; and (2) why Airene Williamson and WLO should not be sanctioned under Federal Rule of Civil Procedure 11 and/or the Court's inherent power to impose sanctions. Dkt. No. 42. In their written response to the order to show cause and at the hearing on that matter, WLO and Airene Williamson represented that the complaint in this action, which was originally filed in state court, named as plaintiff the son of Tupou Netane who has the same name as his father. Dkt. No. 47. Airene Williamson further stated at the hearing that, since the filing of the complaint, she has not communicated directly with Tupou Netane (the son). Despite this revelation that plaintiff might not be dead as previously represented, the joint status report filed by WLO on February 5, 2014, continues to refer to substitution of a proper plaintiff under Federal Rule of Civil Procedure Rule 25(a) (governing the substitution of a proper party when a party dies). Dkt. No. 52 at 3:4-13.
Given the conflicting representations of counsel and the remarkable lack of clarity about the basic question of who is the plaintiff in this case, the Court orders Tupou Netane (the son) to appear in person at case management conference set for February 12, 2014, at 1:00 p.m. in Courtroom A, 15th Floor, U.S. District Court, 450 Golden Gate Avenue, San Francisco, California.
At the conference, Tupou Netane (the son) must be prepared to inform the Court (1) whether he is the plaintiff in this case; (2) if he is the plaintiff, whether he has authorized the filing of the "Notice of Voluntary Dismissal of Action, " Dkt. No. 41; and (3) if he is the plaintiff and has not authorized the filing of the notice of dismissal, why the Court should not dismiss his case for his failure to respond to the pending motions (Wells Fargo's motion to dismiss plaintiff's complaint, Dkt. No. 9, joined by the Bank of New York, and Equity Growth Asset Management's motion to intervene and expunge notice of pending action, Dkt. No. 14) as required by Civil Local Rule 7-3, and for failure to appear in person as previously ordered by the Court, Dkt. Nos. 18, 28, 32.
If Tupou Netane (the son) is the plaintiff in this case, his failure to respond to this order will result in dismissal of this case with prejudice. See Ghazali v. Moran , 46 F.3d 52, 53 (9th Cir. 1995) ("Failure to follow a district court's local rules is a proper ground for dismissal.").
WLO, Airene Williamson, and counsel for the defendants and the intervenor may appear by telephone at the case management conference. To do so, counsel must contact the Courtroom Deputy at 415.522.2039 to provide a direct dial number for their appearance and musts remain on stand by until called by the Court.
The hearing on defendants' motion to dismiss, Dkt. Nos. 9, 13 and the motion to intervene and expunge notice of pending action, Dkt. No. 14, is continued from February 12, 2014, to March 12, 2014 at 1:00 p.m.
WLO and Airene Williamson must serve this order as soon as possible on Tupou Netane (the son), Malissa Netane, and Elenoa Netane, and file aa proof of service with the Court by February 12, 2014.
This order does not resolve the pending order to show cause directed to WLO and Airene Williamson which has been taken under submission.
IT IS SO ORDERED.