v. SunTrust Mortgage, Inc. et al

Filing 53

ORDER that Plaintiffs shall file and serve a responsive memorandum to the Motion to Dismiss before 5:00 p.m. on 12/17/09. ORDER that if Plaintiffs intend to file a reply memorandum to the Motion to Strike, they shall also have until 5:00 p.m. on 12/17/09. Signed by Judge G Murray Snow on 12/3/09. (TLJ)

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WO
NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiffs, ) ) vs. ) ) SUNTRUST MORTGAGE, INC.; et al., ) ) ) Defendants. ) TAJUDEEN O. OLADIRAN; et al.,

No. CV-09-01471-PHX-GMS ORDER

The instant civil action was removed from Maricopa County Superior Court on July 16, 2009. (Dkt. # 1.) On July 27, 2009, Plaintiffs filed an amended complaint alleging a violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO") as well as several state law claims. (Dkt. # 16.) On September 23, 2009, Defendants filed a Motion to Dismiss several of Plaintiffs' claims pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. # 40.) As of December 2, 2009, Plaintiffs have failed to file a response to the Motion. When Defendants filed their Motion, Local Rule 7.2(c) provided that "[t]he opposing party shall . . . have ten (10) days after service in a civil or criminal case within which to serve and file a responsive memorandum" to a Motion to Dismiss.1 Rather than file a response, however, Plaintiffs filed a separate Motion to Strike. (Dkt. # 42.) The Motion to Strike does not address the specific

On December 1, 2009, Local Rule 7.2(c) was amended to allow fourteen (14) days to respond to a 12(b)(6) motion. See LRCiv. 7.2(c).

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substantive arguments presented in Defendants' Motion to Dismiss. (See id.) Therefore, as of December 2, 2009, Plaintiffs have not filed a timely responsive memoranda to the Motion to Dismiss, nor have they sought extensions of time to do so.2 Under the Local Rules, Plaintiffs' failure "may be deemed a consent to the denial or granting of the motion[.]" See LRCiv. 7.2(i). Thus, in the instant case, summary dismissal of Plaintiffs' claims could result if the Motion to Strike is denied and Plaintiffs fail to file a response to the Motion to Dismiss. Therefore, IT IS HEREBY ORDERED that Plaintiffs shall file and serve a responsive memorandum to the Motion to Dismiss before 5:00 p.m. on December 17, 2009. Should Plaintiffs fail to comply, the Court may deem Plaintiffs' failure to oppose the Motion as a waiver, and may grant the Motion on that basis. IT IS FURTHER ORDERED that if Plaintiffs intend to file a reply memorandum to the Motion to Strike, they shall also have until 5:00 p.m. on December 17, 2009 to do so. DATED this 3rd day of December, 2009.

Plaintiffs' failure to file a response may be a result of the parties' October 15, 2009 stipulation in which they agreed not to file motions or pleadings prior to or during mediation. (Dkt. # 51.) The Court has since learned that recent efforts towards mediation have failed. Regardless, the Court took no action on the stipulation; thus, the time frame for filing responsive memoranda has not been extended. (See Dkt. # 52.) -2-

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