Pena v. Wells Fargo Bank NA et al
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 9/23/11 ORDERING hearing date of 10/12/11 on 6 , 7 , 17 Motions is VACATED and RECOMMENDING that this action be dismissed based on plaintiff's failure to prosecute the action and to comply with court orders and Local Rules; RECOMMENDING 6 and 7 Motions be denied as moot; and closure of case. Referred to Judge Lawrence K. Karlton. Objections to F&R due 14 days after being served with these findings and recommendations. (Meuleman, A)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MARIA PENA,
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Plaintiff,
CIV. NO. S-11-1761 LKK CKD PS
vs.
WELLS FARGO BANK NA, et al.,
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Defendants.
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ORDER AND
FINDINGS AND RECOMMENDATIONS
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This case, in which plaintiff is 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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July 8, 2011, defendants filed a motion to dismiss and motion to strike. The motions were
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noticed to be heard on August 25, 2011 and continued by minute order for hearing on September
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7, 2011.
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On August 26, 2011, because plaintiff had not filed either an opposition or a
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statement of non-opposition to the motions, the undersigned continued the hearing on the
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motions to October 12, 2011; ordered plaintiff to show cause, in writing, no later than September
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21, 2011, why sanctions should not be imposed for failure to timely file an opposition or a
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statement of non-opposition to the pending motions; and directed plaintiff to file an opposition to
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the motions, or a statement of non-opposition thereto, no later than September 21, 2011. The
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undersigned further stated that “[f]ailure of plaintiff to file an opposition will be deemed a
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statement of non-opposition to the pending motion, and may result in a recommendation that this
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action be dismissed for lack of prosecution. See Fed. R. Civ. P. 41(b).” Id.
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Although the deadlines have now passed, the court docket reflects that plaintiff
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has 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 plaintiff’s 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 defendants’ 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 October 12, 2011, on defendants’ motions to dismiss and
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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 plaintiff’s failure to prosecute the action and to comply with court orders and Local
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Rules;
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2. Defendants’ motions to dismiss and to strike (dkt. nos. 6, 7) 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: September 23, 2011
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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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pena.nop.57
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