PNC Bank v. Smith et al

Filing 149

ORDER and ORDER to SHOW CAUSE signed by Magistrate Judge Edmund F. Brennan on 9/11/14 ORDERING that the hearing on plaintiff's 142 motion to dismiss is CONTINUED to 10/15/2014 at 10:00 AM in Courtroom 8 (EFB) before Magistrate Judge Edmund F. Brennan. Defendant Smith shall show cause, in writing, no later than 10/1/2014, why sanctions should not be imposed. Defendant Smith shall file an opposition to the motion, or a statement of non-opposition no later than 10/1/2014. Plaintiff may file a reply to defendant Smith's opposition, if any, on or before 10/8/2014. (Kastilahn, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11
12

PNC BANK, N.A., a National Association,
as successor in interest to National City
Bank,

13

Plaintiff,

14
15
16
17

No. 2:10-cv-1916-JAM-EFB PS

ORDER AND ORDER TO SHOW CAUSE

v.
BELINDA L. SMITH, in personam;
JACOB WINDING, in personam; B & B
Dreamin’ Hull No. GMKD283C505 (the
“Vessel”), its engines, machinery,
appurtenances, etc., in rem,

18

Defendants.

19
On July 7, 2014, plaintiff filed a motion to dismiss defendant Smith’s second amended

20
21

counterclaim. ECF No. 142. The motion was originally noticed for hearing on August 20, 2014,

22

id., but the hearing was subsequently continued September 24, 2014. ECF No. 146.

23

Court records reflect that defendant Smith has not filed an opposition or statement of non-

24

opposition to the motion to dismiss. Local Rule 230(c) provides that opposition to the granting of

25

a motion, or a statement of non-opposition thereto, must be served upon the moving party, and

26

filed with this court, no later than fourteen days preceding the noticed hearing date or, in this

27

instance, by September 10, 2014. Local Rule 230(c) further provides that “[n]o party will be

28

/////
1

1

entitled to be heard in opposition to a motion at oral arguments if opposition to the motion has not

2

been timely filed by that party.”

3

Local Rule 183, governing persons appearing in pro se, provides that failure to comply

4

with the Federal Rules of Civil Procedure and Local Rules may be grounds for dismissal,

5

judgment by default, or other appropriate sanctions. Local Rule 110 provides that failure to

6

comply with the Local Rules “may be grounds for imposition by the Court of any and all

7

sanctions authorized by statute or Rule or within the inherent power of the Court.” See also

8

Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (“Failure to follow a district court’s local rules

9

is a proper ground for dismissal.”). Pro se litigants are bound by the rules of procedure, even

10

though pleadings are liberally construed in their favor. King v. Atiyeh, 814 F.2d 565, 567 (9th

11

Cir. 1987).

12

Accordingly, good cause appearing, it is hereby ORDERED that:

13

1. The hearing on plaintiff’s motion to dismiss, ECF No. 142, is continued to October 15,

14
15

2014.
2. Defendant Smith shall show cause, in writing, no later than October 1, 2014, why

16

sanctions should not be imposed for failure to timely file an opposition or a statement of non-

17

opposition to the pending motion.

18
19
20

3. Defendant Smith shall file an opposition to the motion, or a statement of nonopposition thereto, no later than October 1, 2014.
4. Failure of defendant Smith to file an opposition to the motions will be deemed a

21

statement of non-opposition thereto, and may result in a recommendation that her second

22

amended counterclaim be dismissed for lack of prosecution and/or for failure to comply with

23

court orders and this court’s Local Rules. See Fed. R. Civ. P. 41(b).

24

5. Plaintiff may file a reply to defendant Smith’s opposition, if any, on or before October

25

8, 2014.

26

DATED: September 11, 2014.

27
28
2