V. Quicken Loans, Inc.

Western District of Texas, txwd-5:2019-cv-00697

Response in Opposition to Motion, filed by Pablo E. Gay, Anna J. Subia, re [11] MOTION for Order to Show Cause filed by Defendant Quicken Loans, Inc.

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION PABLO GAY AND ANNA J. SUBIA, § § Plaintiff, § § § v. § CIVIL ACTION NO. 5:19-cv-00697-OLG § QUICKEN LOANS, INC., § § Defendant. § PLAINTIFFS' RESPONSE IN OPPOSITION TO MOTION TO SHOW CAUSE FILED BY DEFENDANT, QUICKEN LOANS, INC. TO THE HONORABLE UNITED STATES DISTRICT COURT JUDGE: COMES NOW, Pablo Gay and Anna J. Subia, Plaintiffs, and hereby response to the Motion to Show Cause filed by Defendant, Quicken Loans, Inc. In support of this Response, the Plaintiff states as follows: FACTS RELEVANT TO THIS RESPONSE. 1. Plaintiff filed this instant case in State Court on May 31, 2019. 2. Plaintiffs allege causes of actions related to a trustee's sale set for June 2019. 3. Defendant, Quicken Loans Inc., removed this case to this Court on June 14, 2019. 4. The Parties agreed to allow the Defendant, Quicken Loans Inc., additional time to file an answer as settlement negotiations were explored. 5. Defendant, Quicken Loans Inc., filed its answer with this Court on August 9, 2019. 6. On August 12, 2019, this Court entered an Order regarding the Parties to enter a Scheduling Order by September 24, 2019. 7. The Parties did have discussions about the case after that Order, and it was agreed that Plaintiffs' counsel would provide a copy of the Proposed Scheduling Order to Defendant's counsel. 8. On September 24, 2019, Plainitffs' counsel did provide a draft of the Proposed Scheduling Order to Defendant's Counsel. Defendant's Counsel has never approved the Scheduling Order or provided its own Scheduling Order for the Court's Review. 9. Based on the Court's Order of August 12, 2019, Plaintiff is awaiting the Court to enter its own scheduling order. LAW AND ARGUMENT Without citing any statutory, procedural, or jurisprudential authority, Defendant has brought forth this Motion to Show Cause. Defendant however basis their request on Rule 41 of the Federal Rules of Civil Procedure and Plaintiff's counsel conduct in cases before this District. Neither of these positions give rise to the need for a Motion for Show Cause. 1. Dismissal based on Rule 41 Defendant in its Motion to Show Cause states that Rule 41 of the Federal Rules of Civil Procedure requires this case to be dismissed with prejudice as it is the third filing of this case. The more appropriate method to present this issue to the Court is through a Motion to Dismiss. Therefore, this Court should deny this Motion to Show Cause fore that basis. In addition, Rule 41 of the Federal Rules of Civil Procedure states that the second dismissal for the same claim does require the second dismissal with to be with prejudice. Plaintiffs would admit that they did dismiss their other two actions before this Court under Rule 41 of the Federal 2 Rules of Civil Procedure. However, the issues in those cases were based on different causes of actions stemming for different Trustee's Sale dates. Each Trustee's sale event started a new set of causes of actions which would prevent the application of the second dismissal rule in Rule 41 of the Federal Rules of Civil Procedure. Yet again, the more appropriate avenue for Defendant to have this matter before the Court is to file its own Motion to Dismiss. Since the Defendant has not, Plaintiffs would request that this Motion for Show Cause be denied. 2. Plaintiff's Counsel conduct in cases before this District Defendant in addition would like to the Court to require a Show Cause Order be entered because of the conduct of Plaintiffs' counsel. First, Defendant show no basis for this position or imposing conduct by a party's counsel onto the party. Imposing a punishment for conduct in cases not involving the party would potentially violate the Due Process Rights of the party. Therefore, Plaintiffs ask for the Motion for Show Cause to be denied. The undersigned counsel if necessary could explain to the Court in detail regarding the cases cited by Defendant in its Motion to Show Cause. However, it is important to note that Plaintiffs and their counsel timely provided a Proposed Scheduling Order to Defendant's counsel. While Defendant noted in its Motion for Show Cause supposed transgressions of Plaintiffs and their counsel in this case, Defendant failed to state that anything about the outstanding scheduling order. On October 1, 2019, the undersigned attorney requested again for Defendant's approval to the Proposed Show Cause Order. Defendant finally reached out on October 8, 2019, questioning the dates on the order, that the dates should be updated, and other issues. At this time, Plaintiffs are awaiting the Court to enter its own scheduling order as it stated would happen if no scheduling order was filed by September 24, 2019. Therefore, the Plaintiffs would ask that this Court deny the Motion to Show Cause for these reasons. 3 PRAYER WHEREFORE, premises considered, Plaintiffs request that the Court deny the Motion to Show Cause. Plaintiffs would further pray that the Court grant attorneys fee and costs and for all other and further relief in law or in equity to which they may be entitled. Respectfully submitted, /s/ Robert C. Newark Robert C. Newark State Bar No. 24040097 office@newarkfirm.com 1341 W. MOCKINGBIRD LANE, STE 600W DALLAS, TEXAS 75247 (866)230-7236 (888)316-3398 (FAX) ATTORNEY FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served on October 8, 2019, on the following via ECF pursuant to the Federal Rules of Civil Procedure. Jacob Sparks /s/ Robert C. Newark Robert C. Newark 4