Bencivenga v. US Bank, National Association et al

Filing 54

ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE 41 44 (Illston, Susan) (Filed on 7/27/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MARC ANTHONY BENCIVENGA,
Plaintiff,

United States District Court
For the Northern District of California

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No. C 11-04128 SI
ORDER DISMISSING CASE FOR
FAILURE TO PROSECUTE

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
Defendant.

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/

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Plaintiff Bencivenga filed a Chapter 7 bankruptcy petition which was discharged prior to the date

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he filed this action. That petition did not list the claim represented by this action. The bankruptcy case
was re-opened on January 10, 2012 to allow plaintiff to file an amended schedule listing this claim,
which he did on January 31, 2012. See In re: Marc Anthony Bencivenga, Bankruptcy Pet. 11-10829,
Dkts. 18-20. On March 29, 2012, the Court stayed this action pending the bankruptcy trustee’s
abandonment of plaintiff’s claim. See Dkt. 47. On April 9, 2012, the bankruptcy case was closed. On
April 16, 2012, plaintiff filed a “Notice of Closing of Bankruptcy Case, and Request for Hearing
Rescheduling.” Dkt. 48. Plaintiff argued that the closing of the bankruptcy case is “a conclusive
showing that the trustee for said bankruptcy, Timothy W. Hoffman, has abandoned plaintiff’s claim.”
Id.
On April 26, 2012, the Court issued an Order stating that the closing of the bankruptcy case,
without more, was not proof that the trustee had abandoned the claim. The Court directed plaintiff to

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file a statement from the trustee stating that the trustee had abandoned the claim, or otherwise provide

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evidence that the claim had been abandoned. Dkt. 51. As of July 5, 2012, plaintiff had not filed such

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a statement or made contact with the Court in any other way. The Court therefore issued an order

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setting a July 20, 2012 deadline for him to file a statement; the Court stated that failure to so file by that

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deadline would result in dismissal of this action.

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Plaintiff has not filed a statement nor contacted the Court regarding his case. The Court

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therefore DISMISSES plaintiff’s complaint without prejudice for failure to prosecute pursuant to Fed.

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R. Civ. P. 41(b).

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United States District Court
For the Northern District of California

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IT IS SO ORDERED.

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Dated: July 27, 2012
SUSAN ILLSTON
United States District Judge

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