Esoimeme v. Wells Fargo Bank et al

Filing 16

ORDER AND ORDER to SHOW CAUSE signed by Magistrate Judge Edmund F. Brennan on 11/02/10 ORDERING that plf's 15 Motion to Remand is DENIED; the hearing on dfts' 7 Motion to Dismiss Complaint and 8 Motion to Strike is CONTINUED to 12/22/ 10 at 10:00 AM in Courtroom 24 (EFB) before Magistrate Judge Edmund F. Brennan; plf shall SHOW CAUSE by 12/08/10 why sanctions should not be imposed for failure to timely file an opposition or a statement of non-opposition to the pending motions and for failure to timely respond to the 09/28/10 order; plf shall file an opposition to the motions, or a statement of non-opposition by 12/08/10; dfts may file a reply to plf's opposition(s) by 12/15/10. (Benson, A.)

(PS) Esoimeme v. Wells Fargo Bank et al

Doc. 16

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. WELLS FARGO BANK; NDEX WEST LLC; WORLD SAVINGS BANK; and DOES 1-100, inclusive, Defendants. ________________________________/ This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). On August 23, 2010, defendants removed the action to this court from Solano County Superior Court on the ground that plaintiff's complaint alleges federal claims and on the alternative ground that the citizenship of the parties is diverse. Dckt. No. 1. On August 30, 2010, defendants Wells Fargo Bank and World Savings Bank moved to dismiss and to strike plaintiff's complaint. Dckt. Nos. 7, 8. Defendants noticed the motions to be heard on October 6, 2010. Id. On September 28, 2010, because court records reflected that plaintiff had filed neither an opposition nor a statement of non-opposition to defendants' motions, the undersigned continued the hearing on defendants' motion to dismiss and motion to strike to November 10, 2010; 1
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA MATHIAS ESOIMEME, Plaintiff, No. CIV S-10-2259 JAM EFB PS

ORDER AND ORDER TO SHOW CAUSE

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directed plaintiff to shall show cause, in writing, no later than October 27, 2010, why sanctions should not be imposed for failure to timely file an opposition or a statement of non-opposition to the pending motions; and directed plaintiff to file an opposition to the motions, or a statement of non-opposition thereto, no later than October 27, 2010. Dckt. No. 13 (citing E.D. Cal. L.R. 230(c); L.R. 183; L.R. 110; Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) ("Failure to follow a district court's local rules is a proper ground for dismissal."). The order also warned plaintiff that "[f]ailure . . . to file an opposition will be deemed a statement of non-opposition to the pending motions, and may result in a recommendation that this action be dismissed for lack of prosecution. See Fed. R. Civ. P. 41(b)." Id. On October 18, 2010, plaintiff filed a document entitled "Reason for Decline of Jurisdiction," in which plaintiff contends that the case should be remanded back to Solano County Superior Court. Dckt. No. 15. Plaintiff contends that "[t]he case started in Vallejo, and [the] house involved is in Vallejo [and] any bias by defendants was not substantial to move the case to Sacramento where they [feel they] can have [a] better trial of the case." Id. To the extent plaintiff's "Reason for Decline of Jurisdiction" constitutes a motion to remand, that motion will be denied. Plaintiff failed to notice the motion for hearing, as required by Local Rule 230(b). Moreover, contrary to the arguments set forth in the "Reason for Decline of Jurisdiction," defendants' removal of this action was proper pursuant to 28 U.S.C. §§ 1441 and 1446, based on both federal question and diversity jurisdiction. Dckt. No. 1; see also 28 U.S.C. §§ 1331, 1332. Further, although plaintiff filed the "Reason for Decline of Jurisdiction," plaintiff still has not complied with the September 28, 2010 order. He has not filed either an opposition or a statement of non-opposition to defendants' motions, and he has not responded to the order to show cause. Therefore, the hearing on defendants' motion to dismiss and motion to strike will once again be continued, plaintiff will once again be ordered to show cause why he should not be sanctioned for his failures, and plaintiff will be directed to file an opposition or a statement of non-opposition to the motions. 2

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Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiff's motion to remand, Dckt. No. 15, is denied. 2. The hearing on defendants' motion to dismiss and motion to strike is continued to December 22, 2010. 3. Plaintiff shall show cause, in writing, no later than December 8, 2010, why sanctions should not be imposed for failure to timely file an opposition or a statement of non-opposition to the pending motions and for failure to timely respond to the September 28, 2010 order. 4. Plaintiff shall file an opposition to the motions, or a statement of non-opposition thereto, no later than December 8, 2010. 5. Failure of plaintiff to file an opposition will be deemed a statement of non-opposition to the pending motions, and may result in a recommendation that this action be dismissed for lack of prosecution. See Fed. R. Civ. P. 41(b). 6. Defendants may file a reply to plaintiff's opposition(s), if any, on or before December 15, 2010. SO ORDERED. DATED: November 2, 2010.

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