Cuva, et al v. Wells Fargo Bank, et al

Filing 15

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K Delaney on 8/8/2011 ORDERING that the 8/31/2011 hearing date on dft's 7 and 8 motions to dismiss and to strike is VACATED. IT IS HEREBY RECOMMENDED that this action be dismissed. Dft's 7 and 8 motions to dismiss and to strike be denied as moot and the Clerk be directed to close this case. Motions referred to Judge Kimberly J. Mueller. Objections to F&R due within 14 days. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DENNIS CUVA,

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Plaintiff,
vs.
WELLS FARGO BANK, N.A., et al.,
Defendants.

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No. CIV S-11-1400 KJM CKD PS

ORDER AND
FINDINGS AND RECOMMENDATIONS
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This case, in which plaintiffs are proceeding pro se, is before the undersigned

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pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). On

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May 27, 2011, defendant filed a motion to dismiss and motion to strike. The motions were

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noticed to be heard on July 13, 2011.

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On July 1, 2011, because plaintiffs had not filed either an opposition or a

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statement of non-opposition to the motions, the court continued the hearing on the motions to

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August 17, 2011; ordered plaintiffs to show cause, in writing, no later than August 3, 2011, 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 motions; and directed plaintiffs to file an opposition to the motions, or

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a statement of non-opposition thereto, no later than August 3, 2011. The court further stated that

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“[f]ailure of plaintiff to file an opposition will be deemed a statement of non-opposition to the
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pending motion, and may result in a recommendation that this action be dismissed for lack of

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prosecution. See Fed. R. Civ. P. 41(b).” Id.

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Although the deadlines have now passed, the court docket reflects that plaintiffs

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have not filed a response to the order to show cause, an opposition to the motions, or a statement

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of non-opposition to the motions. In light of plaintiffs’ failures, the undersigned will recommend

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that this action be dismissed for failure to prosecute the action and for failure to comply with

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court orders and Local Rules, and that defendant’s motions to dismiss and to strike be denied as

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moot. See Fed. R. Civ. P. 41(b); L.R. 110.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The hearing date of August 31, 2011, on defendant’s motions to dismiss and to
strike, is vacated; and

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IT IS HEREBY RECOMMENDED that:

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1. This action be dismissed pursuant to Federal Rule of Civil Procedure 41(b),

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based on plaintiffs’ failure to prosecute the action and to comply with court orders and Local

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Rules;

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2. Defendant’s motions to dismiss and to strike (dkt. nos. 7, 8) be denied as moot;
and

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3. The Clerk of Court be directed to close this case.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: August 8, 2011

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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cuva.nop.57

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