United States District Court, S.D. Texas, Corpus Christi Division
ALICE M. RIOJAS, et al. Plaintiffs,
WELLS FARGO BANK, N.A., Defendant.
Tagle Senior United States District Judge
REMEMBERED that on July 5, 2017, this Court DISMISSED the
above-captioned case for failure to prosecute under Federal
Rules of Civil Procedure 16(f), 37(b)(2)(A)(v), and 41(b).
See Fed. R. Civ. P. 16(f); Fed.R.Civ.P.
37(b)(2)(A)(v); Fed.R.Civ.P. 41(b).
are Alice M. Riojas (“A. Riojas”) and Hector G.
Riojas (“H. Riojas”). On March 19, 2014,
Plaintiffs filed their Original Petition for Declaratory
Judgment and Application for Temporary Restraining Order and
Temporary Injunction against Wells Fargo Bank N.A., as
Trustee for Securitized Asset Backed Receivables LLC Trust
2006-OP1, Mortgage Pass-Through Certificates, Series 2006-OP1
(“Wells Fargo”). See Dkt. No. 1 at 1;
Dkt. No. 1 Ex. 4. They sought a restraining order and
injunctive relief to enjoin an eviction of themselves and any
other occupants from the property located at 115 County Road
434 (County Road 434 & 72 West), Three Rivers, Texas
78072. Id. at 1-2.
September 3, 2014, Plaintiffs' state court case was
removed to this Court. Dkt. No. 1. On August 6, 2015,
Plaintiffs filed their first amended complaint with the
Court. First Am. Compl., Dkt. No. 19. On October 30, 2015,
Plaintiffs filed a notice of intent to settle, in which they
indicated that they were in the process of resolving the
matter with Wells Fargo and requested thirty days to finalize
the settlement and dismissal documents. Dkt. No. 29. On
November 3, 2015, this Court ordered the parties to file
either closing papers or a status report by November 30,
2015. Dkt. No. 30. On November 30, 2015, Plaintiffs filed a
Joint Status Report indicating that the parties were
continuing to finalize settlement and requested forty-five
days to finalize the settlement. Dkt. No. 31. This Court then
ordered closing papers to be due on January 14, 2016. Dkt.
No. 32. On December 11, 2015, Plaintiffs' attorney
Reynaldo Martinez, Jr. (“Martinez”) filed a
motion to withdraw as attorney. Dkt. No. 33; see
also Dkt. No. 35. Martinez represented that the parties
entered into settlement negotiations but that the Plaintiffs
“failed to communicate with counsel since
negotiations.” Dkt. No. 35 at 1. Martinez represented
that a modification packet was e-mailed to the Plaintiff,
without response, and that he telephoned, mailed letters, and
email Plaintiffs, and attached an affidavit averring as such.
Id.; see also Dkt. No. 36. After two
additional orders delineating to ensure that Plaintiffs have
reasonable notice of Martinez's intent to withdraw and
Martinez's filings meeting those requirements, on June 9,
2016, this Court granted Martinez's motion to withdraw as
attorney-in-charge for Plaintiffs. Dkt. No. 44 (granting
motion, Dkt. No. 35). That order further stated:
The parties announced their intent to settle this action
before a scheduling order was entered. Given the passage of
time and the fact that Plaintiffs are no longer represented
by counsel, the Court ORDERS the parties to conduct a
supplemental conference under Federal Rule of Civil Procedure
26(f) and file an amended joint discovery/case management
plan by and including July 7, 2016.
The Court cautions Plaintiffs that failure to participate in
the supplemental conference required by this order may result
in the imposition of sanctions allowed by Federal Rule of
Civil Procedure 16(f) and 37(a)(2)(B)(ii)-(vii) [sic]
[37(b)(2)(A)(ii)-(vii)]. Sanctions may include dismissal of
this action. See Fed.R.Civ.P. 41(b) (authorizing dismissal
for failure to prosecute) . . . .
Dkt. No. 44 at 4; Dkt. No. 56 at 1 (repeating the contents of
the June 9, 2016, order).
Court's direction, the Clerk sent Plaintiffs a copy of
the order entered June 9, 2016, via regular and certified
mail, return receipt requested, to the following last-known
addresses for Plaintiffs: P.O. Box 73, Three Rivers TX 78071
and 101 CR 434, Three Rivers TX 78071. Dkt. No. 44 at 4. The
record reflects, however, that the certified mail sent to
Plaintiffs was returned undeliverable. Dkt. Nos. 48-54.
8, 2016, Wells Fargo filed an Advisory representing that
defense counsel was unable to contact Plaintiffs to arrange a
time for the supplemental Rule 26(f) conferenced ordered by
the Court. Advisory to Ct., Dkt. No. 55 at 1. Wells Fargo
represented that, per a Court Order, defense counsel
attempted to conduct a Joint Discovery/Case Management
conference with Plaintiffs, but was unable to reach the
Plaintiffs by phone, e-mail or regular mail. Id. at
1-2. Wells Fargo also attached as exhibits letters from
defense counsel to Plaintiffs providing evidence in support
of these representations. Id. Exs. A-C. Wells
Fargo's attorney-in-charge represented that he took the
After receipt of the Court's Order, on June 10, 2016,
undersigned counsel for Defendant called the number provided
on the Amended Motion to Withdraw. The recording stated that
it was “not accepting calls at this time.”
Undersigned counsel sent an email to withdrawn counsel for
Plaintiffs (Mr. Martinez) asking for any other last known
contact information due to that recording as well as the
belief that Plaintiffs had been evicted from the property via
an executed writ of possession. Undersigned counsel has not
heard back from such counsel.
On June 13, 2016, undersigned counsel advised the Court's
Case Manager regarding the difficulty contacting pro se
Plaintiffs. Counsel for Defendant also called Alice Riojas
and Hector Riojas at phone numbers provided in a Motion to
Withdraw as Counsel filed by Thomas Forehand of Schneider
& McWilliams, PC on or about January 25, 2016 in the
Court of Appeals for the Thirteenth District of Texas at
Corpus Christi, Cause No. 13-15-00279-CV (attached hereto as
Exhibit A). When the number provided for Alice Riojas ((361)
449-6865) was called, a recording said the voicemail had not
yet been set up. When the number provided in Mr.
Martinez's Amended Motion to Withdraw was called again,
the same recording stated “not accepting calls at this
time.” Undersigned counsel also called the number
provided for Hector G. Riojas in the abovereferenced Motion
to Withdraw filed by Thomas Forehand-(361) 318-5233. Mr.
Riojas immediately called back undersigned counsel and stated
that he and Alice Riojas were divorced four (4) years ago,
that she received the property in the divorce, and that he
“wants nothing to do with all of this.”
Undersigned counsel confirmed Mr. Riojas's P.O. Box
address (P.O. Box 973, Three Rivers, Texas 78071) and told
Mr. Riojas that we would send him a copy of the Court's
Order and it was up to him to consult with Mr. Martinez, Mr.
Forehand or other counsel regarding same or this lawsuit. Mr.
Riojas also advised that he believed that the correct P.O.
Box address for Alice Riojas was P.O. Box 73, Three Rivers,
Texas 78071 (which was the same one shown by counsel for Mr.
Martinez in Dkt. 43 Ex. B at 1).
Further, on June 13, 2016, undersigned counsel then sent the
Court's Order-along with a cover letter attached hereto
as Exhibit B requesting to be contacted as soon as possible
to conduct the supplemental conference as ordered by the
Court and then file an amended joint discovery/case
management plan-to pro se Plaintiffs via certified and
regular mail at both the last-known physical address provided
in the Amended Motion to Withdraw-101 CR 434, Three Rivers,
Texas 78701 as well as the last-known P.O. Box addresses
above. As shown by the returned mail attached as Exhibit C,
both the certified and regular mail to the physical address
(101 CR 434) were returned. The certified mail to Alice
Riojas at P.O. Box 73 was also returned. The regular mail to
that address has not been returned. Also, neither the regular
nor certified mail to the P.O. Box above provided by Hector
Riojas (P.O. Box 973) has been returned.
Undersigned counsel has since followed up such correspondence
with additional calls to Alice Riojas at the above phone
numbers on June 28, 2016 and July 6, 2016, but only reached
the same recordings as on June 10 and June 13, 2016.
Undersigned counsel also called Hector Riojas on July 6, 2016
at the number ...