Hatton et al v. Bank of America N.A et al

Filing 62

ORDER to SHOW CAUSE RE: Briefing on Motion to Dismiss signed by Magistrate Judge Gary S. Austin on 9/23/2015. Plaintiffs' Show Cause Response due by 10/9/2015. The hearing currently scheduled for September 25, 2015 is VACATED. (Martinez, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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P. ORB HATTON, an individual, and DIANE
HATTON, an individual,

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Case No. 1:15-cv-00187-GSA
ORDER TO SHOW CAUSE RE:
BRIEFING ON MOTION TO DISMISS

Plaintiffs,

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v.
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BANK OF AMERICA, N.A., a national
association; BSI FINANCIAL SERVICES, a
business entity; and Does 1 through 100,
inclusive,

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Defendants.
Defendant BSI Financial Services (“Defendant”) filed a Motion to Dismiss Plaintiffs’

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First Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) on August 20, 2015

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and noticed the hearing on that motion for September 25, 2015. (ECF No. 56.) Under Local Rule

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230(c), any opposition to the Motion was to be “filed and served not less than fourteen (14) days

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preceding the noticed (or continued) hearing date. A responding party who has no opposition to

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the granting of the motion shall serve and file a statement to that effect, specifically designating

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the motion in question.” Thus, Plaintiffs were required to file an opposition brief to the Motion or

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a notice of non-opposition to the Motion no later than September 11, 2015. Plaintiffs have filed

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no such responsive pleading.

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The Court understands that Plaintiffs are proceeding pro se in this matter after the

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withdrawal of their counsel on August 13, 2015. (ECF No. 54.) As explained in the order granting

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the motion to withdraw as counsel, however, Plaintiffs are still “responsible for complying with

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all court rules and applicable laws.” (ECF No. 54.) The Court reiterated this instruction on

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September 1, 2015, in its First Informational Order for Pro Se Litigants. (ECF No. 59.) At the

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same time, the Court is mindful that “it has a duty to ensure that pro se litigants do not lose their

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right to a hearing on the merits of their claim due to ignorance of technical procedural

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requirements.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).

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Accordingly, Plaintiffs are ordered to show cause, if any, why the Motion to Dismiss the

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First Amended Complaint should not be granted for failure to comply with Local Rule 230(c)

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and/or a failure to prosecute their claim. Plaintiffs shall file, no later than October 9, 2015, either

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an opposition to the Motion to Dismiss or a notice of non-opposition to the Motion to Dismiss.

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The filing of either will vacate this Order to Show Cause. Failure to timely respond to this Order

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to Show Cause may result in sanctions, up to and including the dismissal of this action.

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Defendant BSI Financial Services may, if desired, file a reply to any response filed by Plaintiffs

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no later than October 16, 2015.

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The hearing currently scheduled for September 25, 2015 is VACATED. The parties will

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be notified if the Court determines that a hearing on the Motion is required in the future. As the

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hearing is vacated, Defendant’s Request for Telephonic Appearance (ECF No. 60) is DENIED

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AS MOOT.

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IT IS SO ORDERED.
Dated:

September 23, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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