Nguyen, et al v. Home 123 Corporation, et al
Filing
13
OFFICIAL JUDICIAL CAPACITY COMPLAINT signed by Judge Garland E. Burrell, Jr on 6/24/11 REQUESTING Investigation re: whether Attorney Peter Jason Cabbiness (California Bar No. 185376) violated California Rules of court 9.20(a)(1) and/or (4), and/or abandoned his clients in this case; and ORDER dismissing case for failure to prosecute. (Attachments: # 1 Exhibit)(cc The State Bar of California ) (Becknal, R)
<![CDATA[
1
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT
8
FOR THE EASTERN DISTRICT OF CALIFORNIA
9
10
FRANK NGUYEN, CHEERIE T.
MAGALIT,
11
Plaintiffs,
12
13
14
15
16
17
18
19
20
v.
HOME 123 CORPORATION; DEUTSCHE
BANK NATIONAL TRUST COMPANY AS
TRUSTEE UNDER POOLING AND
SERVICING AGREEMENT DATED AS OF
APRIL 1, 2006 MORGAN STANLEY ABS
CAPITAL 1, INC. TRUST 2006-NC3
MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006 NC3;
HOMEQ; T.D. SERVICES COMPANY;
and DOES 1 through 100
inclusive,
Defendants.
________________________________
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
2:11-cv-01070-GEB-KJN
OFFICIAL JUDICIAL CAPACITY
COMPLAINT REQUESTING
INVESTIGATION RE: WHETHER
ATTORNEY PETER JASON
CABBINESS (CALIFORNIA BAR NO.
185376) VIOLATED CALIFORNIA
RULES OF COURT 9.20(a)(1)
AND/OR (4), AND/OR ABANDONED
HIS CLIENTS IN THIS CASE; AND
ORDER DISMISSING CASE FOR
FAILURE TO PROSECUTE
21
On June 14, 2011, counsel for Defendants that have filed a
22
pending dismissal motion informed my deputy clerk via telephone that
23
Plaintiffs’ listed counsel of record, Peter Jason Cabbiness (California
24
Bar License No. 185376), is not eligible to practice law in California
25
since his license is suspended. My deputy clerk informed me of the
26
suspension on June 14, 2011, and on the same day I called and spoke to
27
a
representative
of
the
California
28
1
State
Bar
for
the
purpose
of
1
confirming
2
Cabbiness was obligated to inform the court about his suspension.
the
suspension,
the
duration
thereof,
and
whether
Mr.
3
The California State Bar representative informed me that Mr.
4
Cabbiness was suspended from the practice of law on January 9, 2011, and
5
could be eligible to have his suspension lifted on July 9, 2011. The
6
representative
7
California Rule of Court 9.20(a) requires suspended attorneys to give
8
the following notifications:
9
of
the
California
State
Bar
also
informed
13
. . . .
15
that
Notify all clients being represented in pending
matters and any co-counsel of [the attorney’s] . .
. suspension . . . and his or her consequent
disqualification to act as an attorney after the
effective date of the . . . suspension . . . and,
in the absence of co-counsel, also notify the
clients to seek legal advice elsewhere, calling
attention
to
any
urgency
in
seeking
the
substitution of another attorney or attorneys[.]
14
me
Notify opposing counsel in pending litigation . . .
of [a] . . . suspension . . . and consequent
disqualification to act as an attorney after the
effective date of the . . . suspension[,] . . . and
file a copy of the notice with the court . . .
before which the litigation is pending for
inclusion in the respective file or files.
10
11
12
16
17
18
19
20
CAL. RULES
OF
COURT 9.20(a)(1),(4) (emphasis added).
Following
receipt
of
this
notice
information
from
the
21
California State Bar, I looked at the federal docket sheet for this case
22
to determine on whom documents have been served and saw that a deputy
23
clerk in the clerk’s office made the following docket entry on April 21,
24
2011, concerning Mr. Cabbiness’s suspension:
25
26
27
28
The electronic notifications of the filings in this
case are undeliverable to Peter Cabbiness, counsel
for plaintiffs. Therefore, the Clerk’s Office
looked at the website for the California State Bar
and saw that Mr. Cabbiness is not eligible to
practice law because of disciplinary action with
actual suspension commencing on 1/9/2011.
2
1
(ECF No. 7.)
2
When reviewing the docket sheets, I also saw this case was
3
removed from the California Superior Court in the County of San Joaquin
4
(“state court”), and attempted to determine if the federal and/or state
5
court docket sheets contained the notice required by California Rule of
6
Court 9.20(a)(4). A portion of the state court docket sheet is attached
7
to the Removal Petition (and also attached to this Order under the cover
8
sheet marked “State Court Docket Sheet Attached to Removal Petition”).
9
I also examined the state court’s electronic docket on its website (the
10
portion of the state court electronic docket examined is attached to
11
this Order under the cover sheet marked “Information on State Court
12
Website Independently Reviewed by this Federal Court”). The federal
13
court docket sheet also is attached to this Order (it is located under
14
the cover sheet marked “Federal Court Docket Sheet”). Nothing I saw in
15
the federal or state court docket sheets indicates that Mr. Cabbiness
16
has notified either court of his suspended status.
17
Additionally, there is no indication in the federal or state
18
court docket sheets that Mr. Cabbiness filed a substitution of counsel
19
document in connection with his suspension, or that Plaintiffs retained
20
new counsel, or that Plaintiffs are proceeding in propria persona. Under
21
these circumstances, it is apparent that Plaintiffs have been proceeding
22
in this case in propria persona even though the docket sheets do not
23
indicate that Mr. Cabbiness has filed a request to withdraw as counsel
24
of record for Plaintiffs.
25
Local Rule 182(d) of this federal court concerns formal
26
withdrawal motions of counsel when the withdrawal could leave a client
27
in propria persona, and prescribes:
28
[A]n attorney who has appeared may not withdraw
leaving the client in propria persona without leave
3
1
of court upon noticed motion and notice to the
client and all other parties who have appeared. The
attorney shall provide an affidavit stating the
current or last known address or addresses of the
client and the efforts made to notify the client of
the motion to withdraw.
2
3
4
5
E.D. Cal. R. 182(d); see also CAL . RULES
6
member representing a client before a tribunal shall withdraw from
7
employment with the permission of the tribunal, if required by its
8
rules, . . . if: . . . [t]he member knows or should know that continued
9
employment will result in violation of these rules or of the State Bar
10
Act[.]”) (emphasis added); CAL . BUS . & PROF . CODE § 6125 (State Bar Act
11
provision prescribing: “No person shall practice law in California
12
unless the person is an active member of the State Bar”).1
OF
PROF ’L CONDUCT 3-700(B)(2) (“A
13
Further, Local Rule 183(b) of this federal court requires “[a]
14
party appearing in propria persona [to] keep the Court and opposing
15
parties advised as to his or her current address.” E.D. Cal. R. 183(b).
16
This rule further prescribes:
17
If mail directed to a plaintiff in propria persona
by the Clerk is returned by the U.S. Postal
Service, and if such plaintiff fails to notify the
Court and opposing parties within sixty-three (63)
days thereafter of a current address, the Court may
dismiss the action without prejudice for failure to
prosecute.
18
19
20
21
Id. (emphasis added).
22
23
1
24
25
26
27
28
It is unclear whether the California Rules of Court or Rules
of Professional Conduct require an attorney to formally file a motion
for an order authorizing withdrawal as counsel of record when the
attorney is suspended from the practice of law. However, this is a clear
requirement in Oklahoma’s “Rules Governing Disciplinary Proceedings” in
which the following is prescribed: “When the action of the [Oklahoma]
Supreme Court [suspending an attorney from practicing law] becomes
final, a lawyer who is . . . suspended . . . . shall . . . file a formal
withdrawal as counsel in all cases pending in any tribunal.” OKLA . STAT .
tit. 5, ch. 1, app. 1-A, Rule 9.1.
4
1
Local Rules 182(d) and 183(b) are intended, in part, to ensure
2
that client contact information is known by the court so that the court
3
and a party can communicate with a person litigating in propria persona.
4
Nothing in the attached docket sheets indicates that Mr. Cabbiness or
5
Plaintiffs have ever provided such contact information in this case;
6
therefore, the court is unaware of each Plaintiff’s whereabouts.
7
Since Plaintiffs were proceeding in this case in propria
8
persona
9
discovered that electronic notifications sent to Mr. Cabbiness were
10
undeliverable, and because Plaintiffs failed to advise the federal court
11
of their current address “within sixty-three (63) days thereafter,” as
12
required
13
prejudice under the rationale of Local Rule 183(b), which prescribes
14
that “the Court may dismiss [an] action without prejudice for failure to
15
prosecute” if the court has not been provided with contact information
16
for a party proceeding in propria person within 63 days after a court’s
17
filed communication to the party is returned to the court. E.D. Cal. R.
18
183(b) (emphasis added).
on
by
April
Local
21,
2011,
Rule
when
183(b),
the
this
clerk’s
action
office
is
deputy
dismissed
clerk
without
19
Lastly, since this Order contains a complaint requesting the
20
California State Bar to investigate Mr. Cabbiness, the Clerk of the
21
federal court shall mail a copy of this Order to:
22
23
Office of the Chief Trial Counsel/Intake
The State Bar of California
1149 South Hill Street
Los Angeles, California 90015-2299
24
25
Specifically, I request the California State Bar to investigate whether
26
Mr. Cabbiness abandoned Plaintiffs in this case by failing to notify
27
either of them of his suspension, and by failing to file contact
28
5
1
information for either of them with this federal court or the state
2
court.
3
Dated:
June 24, 2011
4
5
6
GARLAND E. BURRELL, JR.
United States District Judge
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
