Sizoo v. Olympus Mortgage Company et al

Filing 23

ORDER, Set/Reset Deadlines as to 7 MOTION to Dismiss Plaintiff's Complaint for Failure to State a Claim Upon Which Relief Can be Granted; Memorandum of Points and Authorities,. Responses due by 11/4/2011. Replies due by 11/11/2011. Motion Hearing set for 11/15/2011 01:00 PM before Hon. Saundra Brown Armstrong.. Signed by Judge ARMSTRONG on 10/25/11. (lrc, COURT STAFF) (Filed on 10/27/2011)

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1 2 UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 OAKLAND DIVISION 5 6 DENISE SIZOO, an individual, Plaintiff, 7 8 vs. Case No: C 11-2561 SBA ORDER Docket 7, 17 9 OLYMPUS MORTGAGE COMPANY, a Delaware corporation, et al., 10 Defendants. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The parties are presently before the Court on Defendants’ motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), which is set for hearing on November 1, 2011. Dkt. 7. Under the version of Local Rule 7-3 in effect at the time the motion was filed, any opposition or statement of non-opposition had to be filed no later than twenty-one days before the noticed hearing date. As such, pro se Plaintiff’s response to the instant motion should have been filed by no later than October 11, 2011. Paragraph 6 of the Court’s Standing Orders expressly warns as follows: “Failure to File Opposition: The failure of the opposing party to timely file a memorandum of points and authorities in opposition to any motion shall constitute a consent to the granting of the motion.” Dkt. 17 at 5. Notwithstanding the requirements of Civil Local Rule 7-3, and the Court’s warnings in its Standing Orders, Plaintiff has filed nothing in response to the pending motion. “Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with any order of the court.” Ferdik v. Bonzelet 963 F.2d 1258, 1260 (9th Cir. 1992). As such, the failure to file an opposition to a motion to dismiss in the manner prescribed by the Court’s Local Rules is grounds for dismissal. Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). Nevertheless, the Court will sua sponte 1 afford pro se Plaintiff an additional opportunity to file a response to Defendants’ motion to 2 dismiss. While the Court does not countenance Plaintiff’s disregard of the Local Rules, the 3 Court grants such extension in consideration of less drastic alternatives to dismissal. See 4 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). Nonetheless, Plaintiff is warned 5 that the failure to file an opposition by the deadline set by the Court will be deemed 6 grounds for dismissing the action under Rule 41(b), without further notice. Accordingly, 7 IT IS HEREBY ORDERED THAT: 8 1. 9 Plaintiff shall file her opposition to Defendants’ motion to dismiss by no later than November 4, 2011. If Plaintiff does not intend to prosecute this action, she should file 10 a stipulation for dismissal under Rule 41(b), a request for dismissal under Rule 41(a), or a 11 statement of non-opposition by that deadline. The failure to timely comply with this Order 12 will result in the dismissal of the action. If applicable, Defendants shall file a reply by no 13 later than November 11, 2011. 14 2. The motion hearing and Case Management Conference currently scheduled 15 for November 1, 2011 are CONTINUED to the next available date of November 15, 2011 16 at 1:00 p.m. Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7- 17 1(b), the Court, in its discretion, may resolve the motion without oral argument. The 18 parties are advised to check the Court’s website to determine whether a court appearance is 19 required. 20 IT IS SO ORDERED. 21 22 23 Dated: October 25, 2011 _____________________________ SAUNDRA BROWN ARMSTRONG United States District Judge 24 25 26 27 28 -2- 1 2 3 4 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA DENISE SIZOO, 5 6 7 8 Plaintiff, v. OLYMPUS MORTGAGE COMPANY et al, Defendant. / 9 10 Case Number: CV11-02561 SBA 11 CERTIFICATE OF SERVICE 12 13 14 15 16 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on October 27, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 17 18 19 Denise Sizoo 4733 Stonehedge Drive Santa Rosa, CA 95405 20 21 22 Dated: October 27, 2011 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk 23 24 25 26 27 28 -3-

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