Gardner v. American Brokers Conduit et al

Filing 10

ORDER to SHOW CAUSE re: Dismissal of Action, signed by Chief Judge Anthony W. Ishii on 8/22/12. Show Cause Response due by 4:00 p.m. on 9/13/2012. (Gonzalez, R)

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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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KIM GARDNER,
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Plaintiff,
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v.
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AMERICAN BROKERS CONDUIT;
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FREDDIE MAC; FINANCIAL TITLE
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COMPANY; MORTGAGE ELECTRONIC )
REGISTRATION SYSTEMS, INC.; CAL- )
WESTERN RECONVEYANCE CORP.; )
and all persons claiming any legal or
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equitable right, title, lien or interest
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in the property,
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Defendants.
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____________________________________)

1:12-cv-00555-AWI-DLB
ORDER TO SHOW CAUSE RE:
DISMISSAL OF ACTION

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The Court refers the parties to the order issued July 16, 2012 for a partial chronology of the
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proceedings. Gardner v. American Brokers Conduit, slip copy, 2012 WL 2923495 (E.D.Cal. 2012).
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On February 17, 2012, plaintiff Kim Gardner (“Plaintiff”) filed her complaint to quiet title in Fresno
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County Superior Court against defendants American Brokers Conduit, Freddie Mac, Financial Title
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Company, Mortgage Electronic Registration Systems, Inc., Cal-Western Reconveyance Corp. and
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all persons claiming any legal or equitable right, title, lien or interest in the property located at 6427
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North Cornelia Avenue, Fresno, CA 93722. On April 6, 2012, defendant Federal Home Loan
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Mortgage Corporation (“FHLMC,” erroneously sued as Freddie Mac) removed the action to this
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Court pursuant to 28 U.S.C. §§ 1331 and 1442 and 12 U.S.C. § 1452(f).

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On June 8, 2012, FHLMC filed a motion to dismiss the complaint pursuant to Federal Rule

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of Civil Procedure 12(b)(6). Plaintiff did not file a written opposition to FHLMC’s motion to

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dismiss. On July 16, 2012, the Court granted the motion to dismiss and directed Plaintiff to file an

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amended complaint within thirty days of the July 17, 2012 entry of the order. Gardner, supra, 2012

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WL 2923495 at *3. No amended complaint was filed by Plaintiff within the time allotted.

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“If the plaintiff fails to . . . comply with . . . a court order, a defendant may move to dismiss

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the action or any claim against it.” Fed. R. Civ. P. 41(b); see Ferdik v. Bonzelet, 963 F.2d 1258,

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1260-61 (9th Cir. 1992) (listing factors for court to consider in determining whether to dismiss a case

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for failure to comply with a court order). Where a plaintiff has failed to comply with a court’s

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orders, the court may also dismiss an action pursuant to Rule 41(b) sua sponte. Hells Canyon

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Preservation Council v. United States Forest Service, 403 F.3d 683, 689 (9th Cir. 2005).

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Accordingly, Plaintiff is ORDERED to show cause in writing by 4:00 p.m. on Thursday,

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September 13, 2012, why no amended complaint has been filed and why this action should not be

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dismissed for failure to comply with the Court’s July 16, 2012 order. Failure to show cause or

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otherwise respond to this order shall result in a dismissal of the action with prejudice as against

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FHLMC. (Because the other named defendants have not filed substantive motions to dismiss and

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were not parties to FHLMC’s Rule 12 motion, the complaint remains operative against them.)

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IT IS SO ORDERED.

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Dated:
0m8i78

August 22, 2012
CHIEF UNITED STATES DISTRICT JUDGE

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