Obiniana et al v. Wells Fargo Bank, N.A. et al

Filing 21

ORDER GRANTING MOTION FOR LEAVE TO FILE LATE OPPOSITION; AND GRANTING EXTENSION OF TIME FOR FILING OF REPLY re 19 Reply to Opposition/Response filed by Miraflor Obiniana, Alfredo Obiniana. Signed by Judge Nathanael M. Cousins on 09/07/2012. (nclc1, COURT STAFF) (Filed on 9/7/2012)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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ALFREDO OBINIANA and MIRAFLOR
OBINIANA,

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Plaintiffs,
v.

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WELLS FARGO BANK, N.A.,
WACHOVIA MORTGAGE, CALWESTERN RECONVEYANCE CORP.,
GOLDEN WEST SAVINGS
ASSOCIATION SERVICE COMPANY,
WOLD SAVINGS BANK, FSB,

Case No. 12-cv-03738 NC
ORDER GRANTING MOTION
FOR LEAVE TO FILE LATE
OPPOSITION; AND GRANTING
EXTENSION OF TIME FOR
FILING OF REPLY
Re: Dkt. No. 19

Defendants.

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This order addresses plaintiffs’ “Request for Leave to File a Late Opposition to

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the Motion to Dismiss,” which was combined in docket entry 19 with a declaration and

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plaintiff’s opposition to the pending motion to dismiss. First, plaintiffs’ filing violates

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procedural requirements set forth in Federal Rule of Civil Procedure 7(b) and NDCA

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Civil Local Rule 7. A request for a court order must be made by a duly noticed motion,

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and that motion must be accompanied by a proposed order. Second, the excuse

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provided by plaintiffs’ counsel for missing a deadline by 29 days – that his assistant

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failed to calendar the due date – is unimpressive. Counsel received electronic notice of

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the motion to dismiss and it is counsel’s responsibility, not his administrative

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assistant’s, to comply with applicable court deadlines.

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Case No. 12-cv-03738 NC
ORDER GRANTING LEAVE TO FILE

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Here, defendants have not been obviously prejudiced by the late filing, as long as

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they are provided an opportunity to respond. Accordingly, plaintiffs’ request for late

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filing is GRANTED, and defendants may file a reply to the motion to dismiss by

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September 14.

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Finally, plaintiffs’ opposition requests, in the alternative, that the case be

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dismissed without prejudice. As Wells Fargo notes, Dkt. No. 20 at n.1, if that is

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plaintiffs’ intention, all they need to do is file a notice of dismissal under Fed. R. Civ. P.

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41(a)(1)(A). The case will be dismissed without prejudice, and without court order.

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Plaintiffs’ counsel is ordered to provide a copy of this order to each of the

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plaintiffs by September 12 and to certify to this court that counsel has done as ordered.

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IT IS SO ORDERED.

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Date: September 7, 2012

___________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

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Case No. 12-cv-03738 NC
ORDER GRANTING LEAVE TO FILE

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