Opinion
Case No: C 09-01643 SBA.
January 31, 2011
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO GRANT SUBSTITUTION AND MOTION FOR CONTINUANCE Dkt. 43, 45
On August 8, 2008, Plaintiff filed this wrongful foreclosure action against Defendants in the Superior Court of California, County of Alameda, alleging violations of various state and federal laws. This action was removed to this Court on April 15, 2009. Plaintiff's counsel, Patricia Turnage and Glenn Moss, filed a Motion to Withdraw as Counsel on March 31, 2010. Plaintiff opposed his counsel's motion. The Court subsequently denied counsel's motion to withdraw. See Dkt. 42.
Now, Plaintiff has filed a Motion to Grant Substitution and Motion for Continuance ("Plaintiff's Motion"), whereby he asks that his counsel be permitted to withdraw, that he be allowed to proceed pro se until he acquires new counsel, and that the March 1, 2011 hearing on Defendants' pending Motion to Dismiss under Federal Rule of Civil Procedure 41(b) (Dkt. 43) be continued to allow for the preparation of an opposition to the motion. Dkt. 45. Plaintiff also requests, without providing any authority or factual support, for an order requiring his counsel to return a portion of the retainer he paid to counsel and for the return of his files. Having considered Plaintiff's Motion,
IT IS HEREBY ORDERED THAT:
1. Plaintiff's Motion is GRANTED IN PART and DENIED IN PART as follows:
a. Plaintiff's request to allow his counsel to withdraw is GRANTED. Patricia Turnage and Glenn Moss are no longer counsel of record for Plaintiff and shall be terminated in ECF. Turnage and Moss shall immediately serve Plaintiff with a copy of this Order and shall thereafter file a proof of service to confirm the same. Should Plaintiff desire to obtain new counsel, Plaintiff shall have thirty-five (35) days from the date this Order is filed to secure counsel and for such counsel to enter an appearance in this matter. Should Plaintiff decide to proceed pro se, he is advised that pro se parties are obligated to follow the same rules as represented parties. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (finding that pro per litigants must follow the same procedural rules as represented parties). Self-representation is not an excuse for non-compliance with court rules. See Swimmer v. I.R.S., 811 F.2d 1343, 1344 (9th Cir. 1987) ("[i]gnorance of court rules does not constitute excusable neglect, even if the litigant appears pro se.") (citation omitted). It is a pro se plaintiff's responsibility to proceed in a manner consistent with the Federal Rules of Civil Procedure, the Court's Local Rules, and the standing and other orders of this Court. Failure to comply with any of these requirements may result in the imposition of sanctions.
b. Defendants' Motion to Dismiss (Dkt. 43) is DENIED without prejudice, and Plaintiff's request to continue the hearing date on that motion is DENIED as MOOT. Defendants may re-file their Motion to Dismiss within ten (10) days of entry of appearance by Plaintiff's new counsel, or forty-five (45) days from the date this Order is filed, whichever deadline occurs sooner. Plaintiff is advised that whether he proceeds with new counsel or on a pro se basis, any opposition to Defendants' Motion to Dismiss, if re-filed, must be filed in accordance with Civil Local Rule 7-3. The failure to timely file an opposition may be construed as a consent to the granting of the motion.
c. Plaintiff's Motion is DENIED in all other respects.
2. The March 1, 2011 hearing on Defendants' Motion to Dismiss is VACATED.
3. This Order terminates Dockets 43 and 45.
IT IS SO ORDERED.
Dated: 1/31/11