PNC Bank v. Smith et al

Filing 152

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/9/14 ORDERING that the hearing on Plaintiff's MOTION to DISMISS 142 , is CONTINUED to 11/12/2014. Defendant Smith shall show cause, in writing, no later than 10/29/2014, why sanctions sh ould not be imposed for failure to timely file an opposition or a statement of nonopposition to the pending motion. Defendant Smith shall file an opposition to the motion, or a statement of non-opposition thereto, no later than 10/29/14. Plaintiff may file a reply to defendant Smith's opposition, if any, on or before 11/5/14. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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

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Plaintiff,

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

ORDER

v.
BELINDA L. SMITH, in personam;
JACOB WINDING, in personam; B & B
Dreamin’ Hull No. GKMD283C505 (the
“Vessel”), its engines, machinery,
appurtenances, etc., in rem,
Defendants.

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

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

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

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to the court’s local rules, defendant Smith was required to file an opposition or statement of non-

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opposition no later than fourteen days preceding the hearing date or, in this instance, by

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September 10, 2014. See E.D. Cal. L.R. 230(c).

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Defendant Smith failed to file an opposition or a statement of non-opposition to the

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pending motion by that date. Therefore, the hearing on plaintiff’s motion to dismiss was

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continued to October 15, 2014, and defendant Smith was ordered to show cause, in writing, no
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later than October 1, 2014, why sanction should not be imposed for her failure to timely file an

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opposition or a statement of non-opposition to the pending motion. ECF No. 149. Defendant

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Smith was also ordered to file an opposition or a statement of non-opposition by October 1, 2014,

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and admonished that failure to file an opposition would be deemed a statement of non-opposition

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to plaintiff’s motion to dismiss. Id.

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On October 1, 2014, instead of filing an opposition, Smith filed a declaration requesting

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that the court continue the hearing on plaintiff’s motion to dismiss for 120 days to allow her an

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opportunity to obtain counsel. ECF No. 150 at 1. She claims that she needs time to obtain

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counsel in light of a consent order issued by the Comptroller of the United States Department of

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the Treasury, which she submitted with her declaration. However, the consent order cited by

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plaintiff has no relevance to the instant dispute. That consent order deals with plaintiff’s banking

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practice relating to mortgage servicing and its handling of foreclosure proceedings. Second, this

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action was commenced more than four years ago. Defendant Smith has had ample time to obtain

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legal representations, but has declined to do so. Accordingly, the court finds no reason to further

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delay this case.

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However, given Smith’s pro se status, she will be given one final opportunity to file an

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opposition to plaintiff’s motion to dismiss her counterclaim. Smith will also be given an

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additional time to show cause why sanctions should not be imposed for her failure to file an

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opposition or statement of non-opposition to plaintiff’s motion by October 1, 2014.

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Accordingly, it is hereby ORDERED that:

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

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12, 2014.

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2. Defendant Smith shall show cause, in writing, no later than October 29, 2014, why

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

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opposition to the pending motion.

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3. Defendant Smith shall file an opposition to the motion, or a statement of non-

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opposition thereto, no later than October 29, 2014.

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4. Failure of defendant Smith to file an opposition to the motion will be deemed a

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

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

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

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

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November 5, 2014.

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DATED: October 9, 2014.

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