Bencivenga v. US Bank, National Association et al

Filing 19


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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 MARC ANTHONY BENCIVENGA, 9 Plaintiff, United States District Court For the Northern District of California 10 11 12 13 No. C 11-04128 SI ORDER DENYING PLAINTIFF’S MOTION FOR ENTRY OF DEFAULT; DENYING DEFENDANT’S MOTION TO SET ASIDE DEFAULT; AND SETTING A NEW BRIEFING SCHEDULE v. US BANK, NATIONAL ASSOCIATION, as Trustee of GSAA HOME EQUITY TRUST, Series 2005-11, BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP, GRACE EVERITT, DOES 1-10 14 Defendants. / 15 16 On August 22, 2011, plaintiff filed a pro se complaint against defendants alleging claims related 17 to a mortgage secured by plaintiff’s home located at 2054 Oak Ridge Drive, Santa Rosa, California. 18 (Doc. 1) On September 19, 2011, defendant law firm Barrett, Daffin, Frappier, Treder & Weiss, LLP 19 (“Barrett”) and individual defendant Grace Everitt responded by filing a motion to dismiss. (Doc. 8) 20 Defendants Barrett and Everitt’s motion to dismiss is scheduled for hearing on Nov. 18, 2011. 21 On September 21, 2011, because defendant US Bank had not yet responded to the complaint, 22 plaintiff filed a motion for entry of default against it. (Doc. 11). However, no default was entered 23 against US Bank because the Clerk of Court found that the process server for the complaint did not state 24 on the return of service the relationship between the individual served and the defendant. On Sept. 26, 25 2011, the clerk requested plaintiff clarify that relationship before the clerk could enter a judgment of 26 default. The plaintiff never responded. Finally, on October 5, 2011, despite the fact no default had been 27 entered against it, US Bank filed a motion to set aside default and requested leave to file a motion to 28 dismiss. 1 As an initial matter, the Court DENIES defendant US Bank’s motion to set aside default as 2 unnecessary, because no default has been rendered against them, and GRANTS its request to file a 3 motion to dismiss. Defendant US Bank must file any motion to dismiss by Tuesday, October 18, 2011. 4 The Court DISMISSES plaintiff’s motion for entry of default 5 The Court also will set a new briefing schedule for all parties. The hearing on Barrett and 6 Everitt’s motion to dismiss set for November 18, 2011 is hereby VACATED. The hearing for all 7 defendants’ respective motions to dismiss is now set for December 2, 2011. 8 9 Plaintiff must file oppositions to the motions to dismiss by November 1, 2011. The defendants must file their replies by November 8, 2011. United States District Court For the Northern District of California 10 11 IT IS SO ORDERED. 12 13 Dated: October 13, 2011 SUSAN ILLSTON United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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