Vega et al v. JPMorgan Chase Bank, N.A. et al

Filing 19

ORDER signed by Magistrate Judge Kendall J. Newman on 10/7/2013 ORDERING that the 10/24/2013 hearing on defendants' 8 , 9 motions to dismiss is VACATED and CONTINUED to Thursday 12/5/2013, at 10:00 a.m., in Courtroom No. 25. Plaintiffs shall file an opposition to the motions to dismiss no later than 11/7/2013. Alternatively, plaintiffs may file a statement of non-opposition to the motions to dismiss no later than 11/7/2013. Defendants shall file reply briefs to plaintiffs' opposit ion, if any, no later than 11/21/2013. Failure to file a timely opposition or statement of non-opposition to the motions to dismiss will result in a recommendation that the action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b). (Zignago, K.)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

CONSUELO VEGA et al.,

12

Plaintiffs,

13
14

No. 2:13-cv-1666-KJM-KJN PS

v.

ORDER

JPMORGAN CHASE BANK, N.A., et al.,

15

Defendants.

16
Plaintiffs Consuelo Vega and Mario Vega commenced this action on July 3, 2013, in the

17
18

Solano County Superior Court. On August 12, 2013, defendants removed the action to this court,

19

invoking the court’s diversity of citizenship jurisdiction. (ECF No. 1.) On August 19, 2013,

20

defendants filed motions to dismiss plaintiffs’ complaint pursuant to Federal Rule of Civil

21

Procedure 12(b)(6), which were noticed for hearing before the assigned district judge on October

22

11, 2013. (ECF Nos. 8, 9.) Shortly after the filing of these motions, plaintiffs’ counsel moved to

23

withdraw as counsel for plaintiffs, and plaintiffs themselves consented to the withdrawal. (ECF

24

Nos. 13-15.) Accordingly, on August 28, 2013, the district judge authorized plaintiffs to proceed

25

without counsel, referred the action to the undersigned for all pre-trial proceedings pursuant to

26

Local Rule 302(c)(21), and vacated all pending dates before the district judge. (ECF No. 17.)

27

////

28

////
1

1

That same day, the court issued a minute order, stating that:

2

[I]n light of the referral of the case to Judge Newman for all further
pretrial proceedings pursuant to E.D. Cal. L.R. 302(c)(21), the
pending motions to dismiss are reset for hearing before Judge
Newman on 10/24/2013 at 10:00 a.m. in Courtroom 25…Plaintiffs
shall file an opposition or statement of non-opposition to these
motions NO LATER THAN 10/3/2013. Defendants may file any
reply brief no later than 10/10/2013. Failure to file an opposition or
statement of non-opposition to the motions by the required deadline
may result in a recommendation that the action be dismissed with
prejudice pursuant to Federal Rule of Civil Procedure 41(b).

3
4
5
6
7
8

(ECF No. 18.) The court’s minute order was served on plaintiffs by mail at their address of

9

record.

10

Although the October 3, 2013 deadline has now passed, the court’s docket reveals that

11

plaintiffs failed to file a written opposition or statement of non-opposition with respect to the

12

motions to dismiss.

13

Eastern District Local Rule 110 provides that “[f]ailure of counsel or of a party to comply

14

with these Rules or with any order of the Court may be grounds for imposition by the Court of

15

any and all sanctions authorized by statute or Rule or within the inherent power of the Court.”

16

Moreover, Eastern District Local Rule 183(a) provides, in part:

17
18
19
20

Any individual representing himself or herself without an attorney
is bound by the Federal Rules of Civil or Criminal Procedure, these
Rules, and all other applicable law. All obligations placed on
“counsel” by these Rules apply to individuals appearing in propria
persona. Failure to comply therewith may be ground for dismissal,
judgment by default, or any other sanction appropriate under these
Rules.

21

See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the

22

same rules of procedure that govern other litigants”) (overruled on other grounds). Case law is in

23

accord that a district court may impose sanctions, including involuntary dismissal of a plaintiff’s

24

case pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his

25

or her case or fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the

26

court’s local rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a

27

court “may act sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation

28
2

1

Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss

2

an action pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to

3

prosecute or comply with the rules of civil procedure or the court’s orders); Ghazali v. Moran, 46

4

F.3d 52, 53 (9th Cir. 1995) (per curiam) (“Failure to follow a district court’s local rules is a

5

proper ground for dismissal”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992)

6

(“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for

7

failure to comply with any order of the court”); Thompson v. Housing Auth. of City of L.A., 782

8

F.2d 829, 831 (9th Cir. 1986) (per curiam) (stating that district courts have inherent power to

9

control their dockets and may impose sanctions including dismissal or default).
In light of plaintiffs’ pro se status and the court’s desire to resolve plaintiffs’ claims on the

10
11

merits, the court finds it appropriate to provide plaintiffs with one final additional opportunity to

12

oppose defendants’ motions to dismiss, if plaintiffs intend to do so.

13

Accordingly, IT IS HEREBY ORDERED that:

14

1.

The October 24, 2013 hearing on defendants’ motions to dismiss (ECF Nos. 8, 9) is

15

VACATED and CONTINUED to Thursday December 5, 2013, at 10:00 a.m., in

16

Courtroom No. 25 before the undersigned.

17

2. Plaintiffs shall file an opposition to the motions to dismiss no later than November 7,

18

2013. Alternatively, plaintiffs may file a statement of non-opposition to the motions

19

to dismiss no later than November 7, 2013.

20

3. Defendants shall file reply briefs to plaintiffs’ opposition, if any, no later than

21

November 21, 2013. No further briefing will be permitted, unless requested by the

22

court.

23

////

24

////

25

////

26

////

27

////

28

////
3

1

4. Failure to file a timely opposition or statement of non-opposition to the motions to

2

dismiss will result in a recommendation that the action be dismissed with prejudice

3

pursuant to Federal Rule of Civil Procedure 41(b).

4
5

IT IS SO ORDERED.
Dated: October 7, 2013

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4