Moore, et al v. Bank of America, et al

Filing 22

ORDER and FINDINGS and RECOMMENDATIONS, signed by Magistrate Judge Edmund F. Brennan on 3/1/11. It is ORDERED that the hearing date of 3/9/11 on 5 dfts' motion to dismiss is VACATED. The status (pretrial scheduling) conference currently set f or hearing on 4/13/11, is VACATED. It is RECOMMENDED that this action be dismissed pursuant to FRCP 41(b), based on pltf's failure to prosecute the action and to comply with the court's orders and Local Rules. Defendants' 5 motion to dismiss be denied as moot; and the Clerk be directed to close this case. Within 14 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties.(Kastilahn, A)

-EFB (PS) Moore, et al v. Bank of America, et al

Doc. 22

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 Former plaintiff Teresa Moore was dismissed from this action on February 7, 2011. Dckt. Nos. 15, 16, 20. 1
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA GERTRUDE V. VIZMANOS, Plaintiff, vs. BANK OF AMERICA; RECONTRUST COMPANY; US BANK NATIONAL ASSOCIATION; HARBORVIEW 2006-1 TRUST; AMIR ENTERPRISES LLC; MELVIN STRONG; JUDY SCHILLING; HADI R. SAYID-ALI; ED TURNER; and DOES 1-100, FINDINGS AND RECOMMENDATIONS 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).1 See 28 U.S.C. § 636(b)(1). Defendants Bank of America, N.A., ReconTrust Company, N.A., and U.S. Bank National Association, as Trustee for Harborview 2006-1 Trust Fund, move to dismiss plaintiff's complaint, Dckt. No. 5. On January 4, 2011, defendants noticed the motion to be heard on February 9, 2011. Dckt. No. 18. No. CIV S-10-2445 FCD EFB PS

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On February 7, 2011, because plaintiff had not timely filed either an opposition or a statement of non-opposition to the motion, the undersigned continued the hearing on the motion to March 9, 2011; ordered plaintiff to show cause, in writing, no later than February 23, 2011, why sanctions should not be imposed for failure to timely file an opposition or a statement of non-opposition to the pending motion; and directed plaintiff to file an opposition to the motion, or a statement of non-opposition thereto, no later than February 23, 2011. Dckt. No. 21. The undersigned further stated that "[f]ailure of plaintiff to file an opposition will be deemed a statement of non-opposition to the pending motion, and may result in a recommendation that this action be dismissed for lack of prosecution. See Fed. R. Civ. P. 41(b)." Id. Although the deadlines have now passed, the court docket reflects that plaintiff has not filed a response to the order to show cause, an opposition to the motion, or a statement of nonopposition to the motion. In light of plaintiff's failures, the undersigned will recommend that this action be dismissed for failure to prosecute the action and to comply with the court's orders and Local Rules. See Fed. R. Civ. P. 41(b); L.R. 110. Accordingly, IT IS HEREBY ORDERED that: 1. The hearing date of March 9, 2011 on defendants' motion to dismiss, Dckt. No. 5, is vacated; and 2. The status (pretrial scheduling) conference currently set for hearing on April 13, 2011, is vacated.2 IT IS FURTHER RECOMMENDED that: 1. This action be dismissed pursuant to Federal Rule of Civil Procedure 41(b), based on plaintiff's failure to prosecute the action and to comply with the court's orders and Local Rules; //// As a result, the parties are not required to submit status reports as provided in the September 13, 2010 order. See Dckt. No. 3. However, if the recommendation of dismissal herein is not adopted by the district judge, the undersigned will reschedule the status conference and require the parties to submit status reports. 2
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2. Defendants' motion to dismiss, Dckt. No. 5, be denied as moot; and 3. The Clerk be directed to close this case. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: March 1, 2011.

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