Cyphers v. Wells Fargo Bank, N.A. et al

Filing 8

ORDER signed by Judge Morrison C. England, Jr on 8/5/11 GRANTING defendant's 5 Motion to Dismiss with leave to amend. Within 10 days from the date this order is electronically filed, plaintiff's counsel shall either personally pay sancti ons in the amount of $250.00 to the Clerk or show good cause for the failure to comply with Local Rule 230(c). Plaintiff may file an amended complaint not later than 20 days after the date this Memorandum and Order is electronically filed. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT K. CYPHERS, JR.,

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Plaintiff,

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No. 2:11-cv-01202-MCE-EFB

v.

ORDER

WELLS FARGO BANK, N.A.,
NATIONAL CITY BANK N.A,
FINANCIAL TITLE COMPANY,
DOES 1-100,

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Defendants.
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----oo0oo----

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Plaintiff Robert K. Cyphers Jr. (“Plaintiff”) seeks redress

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from Defendants Wells Fargo Bank, National City Bank, and

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Financial Title Company (“Defendants”) for alleged violations of

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California Civil Code Sections 2923.5 and 2924 and 15 U.S.C.

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Sections 1601-1667, the Truth in Lending Act (“TILA”), among

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other state causes of action.

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Presently before the Court is a motion by Defendant Wells

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Fargo to dismiss Plaintiff’s Complaint for failure to state a

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claim upon which relief may be granted pursuant to Federal Rule

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of Civil Procedure 12(b)(6) (ECF No. 5).1

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Eastern District of California Local Rule 230(c) provides

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that an opposition or statement of non-opposition to an

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opponent’s motion must be filed within fourteen days preceding

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the noticed hearing date.

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party will be entitled to be heard in opposition to a motion at

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oral arguments if written opposition to the motion has not been

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timely filed by that party.” Id.

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respond may be deemed withdrawal of opposition to the motion and

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the Court may impose sanctions accordingly.

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The rule further provides that “[n]o

Failure to appear or otherwise

The original hearing for this motion was set for July 14,

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2011.

Plaintiff did not file a timely opposition or a statement

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of non-opposition pursuant to Local Rule 230(c).

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the motion was vacated on the Court’s own motion, and the hearing

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was continued to August 11, 2011.

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days prior to the rescheduled hearing date, Plaintiff has again

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failed to file an opposition to Defendant’s Motion to Dismiss.

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Nonetheless,

As of July 28, 2011, fourteen

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All further references to “Rule” or “Rules” are to the Federal
Rules of Civil Procedure unless otherwise noted.
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In light of the fact that no opposition was filed by

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Plaintiff, Defendant’s Motion to Dismiss2 (Docket No. 5) is

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GRANTED with leave to amend.

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respond to the motion, within ten (10) days from the date this

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order is electronically filed, Plaintiff’s counsel shall either

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(1) personally pay sanctions in the amount of $250.00 to the

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Clerk of the Court3, or (2) show good cause for the failure to

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comply with Local Rule 230(c).

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As a result of the failure to

Plaintiff may file an amended complaint not later than

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twenty (20) days after the date this Memorandum and Order is

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filed electronically.

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said twenty (20)-day period, without further notice, Plaintiff’s

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claims will be dismissed without leave to amend.

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If no amended complaint is filed within

IT IS SO ORDERED.

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Dated: August 5, 2011

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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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Because oral argument will not be of material assistance, the
Court orders this matter submitted on the briefs. E.D. Cal.
Local Rule 230(g).
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The Court is authorized to impose sanctions for failure to
comply with the Local Rules. E.D. Cal. Local Rule 110.
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