Domantay v. NDEX West, LLC, et al.

Filing 14

ORDER VACATING 11 FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 6/24/15. The 7 Motion to Dismiss is submitted on the record. (Manzer, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARIBEL DOMANTAY,

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No. 2:15-cv-0788-MCE-KJN PS

Plaintiff,

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ORDER

v.
NDEX WEST, LLC, et al.,
Defendants.

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On June 9, 2015, the undersigned issued findings and recommendations recommending

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that this case be dismissed pursuant to Federal Rule of Civil Procedure 41(b) based on plaintiff’s

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multiple failures to timely file an opposition or statement of non-opposition to defendant World

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Savings Bank’s (“defendant”) pending motion to dismiss. (ECF No. 11.) On June 11, 2015, one

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week after the extended filing deadline set by the court’s May 11, 2015 order, plaintiff filed an

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opposition to defendant’s motion to dismiss. (ECF No. 12.) It appears that plaintiff filed her

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untimely opposition under the erroneous belief that she was required to file by June 11, 2015, the

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deadline the court set in its June 9, 2015 order for defendant to file its reply brief.

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In light of plaintiff’s pro se status and the strong policy underlying the Federal Rules of

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Civil Procedure favoring decisions on the merits, see Eitel v. McCool, 782 F.2d 1470, 1472 (9th

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Cir. 1986) (“Cases should be decided upon their merits whenever reasonably possible.”), the

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court will vacate the June 9, 2015 findings and recommendations recommending dismissal of this
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action with prejudice in order to address defendant’s motion to dismiss on the merits.1 Because

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defendant has filed a reply to plaintiff’s opposition addressing plaintiff’s opposition on the merits,

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(ECF No. 13), no further briefing regarding defendant’s motion to dismiss will be permitted.

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Furthermore, after reviewing the parties’ briefing, the court concludes that oral argument would

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not be of material assistance in resolving defendant’s motion to dismiss. Accordingly, this

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motion is submitted on the record and briefing pursuant to Local Rule 230(g). If the court

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subsequently determines that oral argument is necessary, it will set a hearing by separate order.

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Based on the foregoing, IT IS HEREBY ORDERED that:

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The June 9, 2015 findings and recommendations (ECF No. 11) recommending

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dismissal of this action with prejudice pursuant to Federal Rule of Civil Procedure 41(b) are

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VACATED.

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2.

Defendant’s motion to dismiss (ECF No. 7) is submitted on the record and briefing

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pursuant to Local Rule 230(g). If the court subsequently determines that oral argument is

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necessary, it will set a hearing by separate order. No further briefing with regard to this motion

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will be permitted unless directed by the court via subsequent order.

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IT IS SO ORDERED.
Dated: June 24, 2015

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Plaintiff is admonished that the court will not act so leniently with respect to any future failures
on plaintiff’s part to comply with any deadlines or other orders issued by the court. Any future
failures to comply with such orders will result in a recommendation that plaintiff’s entire
action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b).
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