Abalos et al v. Bank of America Home Loan Servicing, L.P. et al

Filing 19

ORDER re 8 MOTION to Dismiss Complaint filed by Mortgage Electronic Systems, Inc., Bank of New York, Mellon, Bank of America Home Loan Servicing, L.P., Bank of America, N.A., Recontrust Company, N.A. Case Management Conference set for 3/29/2012 03:00 PM. VIA TELEPHONE. Signed by Judge ARMSTRONG on 1/9/12. (lrc, COURT STAFF) (Filed on 1/9/2012)

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1 2 UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 OAKLAND DIVISION 5 6 ESTRELLA G. ABALOS, JOSE C. ABALOS and 7 DAVID-WYN MILLER: PlenipotentiaryJudge (Witnessing), 8 Plaintiff, Case No: C 11-03150 SBA ORDER DIRECTING PLAINTIFFS TO FILE RESPONSE TO DEFENDANTS’ MOTION TO DISMISS 9 vs. Docket 8 10 BANK OF AMERICA HOME LOAN 11 SERVICING, L.P., AMERICAN WHOLESALE LENDER; RECONTRUST 12 COMPANY, N.A.; BANK OF NEW YORK, MELLON, AS TRUSTEE FOR THE 13 HOLDER OF THE SAMI II-2006-ARI, MTG PASS-THROUGH CERTIFICATE; 14 MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., 15 Defendants. 16 17 18 Plaintiffs, acting pro se, filed the instant mortgage fraud action in this Court on June 19 24, 2011. Dkt. 1. On August 8, 2011, Defendants filed a motion to dismiss under Federal 20 Rule of Civil Procedure 12(b)(6). Dkt. 15. Under Civil Local Rule 7-3(a), an opposition to 21 a motion must be filed within fourteen days of the date the motion was filed, and the reply 22 is due seven days thereafter. As such, Plaintiffs’ response to the motion should have been 23 filed by no later than August 22, 2011. To date, Plaintiffs have not filed any response to 24 Defendants’ motion. 25 This Court’s Standing Orders warn that the failure to file a response to a motion may 26 be deemed to be a consent to the granting of the unopposed motion. Dkt. 12 at 5. As such, 27 it is well within the discretion of the Court to grant Defendants’ motion as unopposed and 28 dismiss the action. See Fed. R. Civ. P. 41(b); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1 1995). Nevertheless, mindful of its obligation to first consider to less drastic alternatives, 2 the Court will afford Plaintiffs one further opportunity to respond to the pending motion. 3 Accordingly, 4 IT IS HEREBY ORDERED THAT: 5 1. Plaintiffs shall have until January 31, 2012 to file and serve their response 6 (i.e., either an opposition or a statement of non-opposition) to Defendants’ Rule 12(b)(6) 7 motion to dismiss. 8 9 10 11 2. Plaintiffs’ response shall comply in all respects with the Federal Rules of Civil Procedure and the Court’s Civil Local Rules including, without limitation, Civil Local Rules 7-3 through 7-5. 3. PLAINTIFFS ARE WARNED THAT THE FAILURE TO FILE A 12 RESPONSE BY THIS DEADLINE AND/OR TO COMPLY WITH THIS ORDER 13 OR ANY OTHER APPLICABLE PROCEDURAL RULES WILL RESULT IN THE 14 GRANTING OF THE PENDING MOTION AND THE DISMISSAL OF THIS 15 ACTION. 16 17 4. In the event Plaintiffs timely file a response, Defendants may file a reply seven days after the deadline for Plaintiffs’ response. 18 5. The motion hearing scheduled for January 24, 2012 is VACATED. 19 6. The Case Management Conference currently scheduled January 24, 2012 is 20 CONTINUED to March 29, 2012 at 3:00 p.m. Prior to the date scheduled for the 21 conference, the parties shall meet and confer and prepare a joint Case Management 22 Conference Statement which complies with the Standing Order for All Judges of the 23 Northern District of California and the Standing Orders of this Court. The Case 24 Management Conference will be conducted by telephone. Plaintiffs shall assume 25 responsibility for filing the joint statement no less than seven (7) days prior to the 26 conference date. Plaintiffs shall set up the conference call with all the parties on the line 27 and call chambers at (510) 637-3559. NO PARTY SHALL CONTACT CHAMBERS 28 DIRECTLY WITHOUT PRIOR AUTHORIZATION OF THE COURT. -2- 1 2 IT IS SO ORDERED. Dated: January 9, 2012 ______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- 1 2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 ESTRELLA G ABALOS et al, 4 Plaintiff, 5 v. 6 BANK OF AMERICA et al, 7 Defendant. / 8 9 Case Number: CV11-03150 SBA 10 CERTIFICATE OF SERVICE 11 12 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 13 14 15 That on January 9, 2012, 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. 16 17 18 19 20 21 Estrella G. Abalos 136 Saint Francis Boulevard San Francisco, CA 94127 Jose C. Abalos 136 Saint Francis Boulevard San Francisco, CA 94127 22 Dated: January 9, 2012 23 Richard W. Wieking, Clerk 24 By: LISA R CLARK, Deputy Clerk 25 26 27 28 -4-

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