Atienza et al v. American Brokers Conduit et al

Filing 15

ORDER re 9 MOTION to Dismiss Plaintiffs' Complaint filed by Mortgage Electronic Registration System, Inc., American Home Mortgage, ORDER Setting Hearing on Motion 9 MOTION to Dismiss Plaintiffs' Complaint : Motion Hearing set for 3/6/2012 01:00 PM before Hon. Saundra Brown Armstrong. Case Management Conference set for 3/6/2012 01:00 PM in Courtroom 1, 4th Floor, Oakland.. Signed by Judge ARMSTRONG on 1/10/12. (lrc, COURT STAFF) (Filed on 1/12/2012)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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ALICIA G. ATIENZA, et al.,
Plaintiffs,

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vs.
AMERICAN BROKERS CONDUIT, et al.,
Defendants.

Case No: C 11-03152 SBA
ORDER CONTINUING MOTION
HEARING AND DIRECTING
PLAINTIFFS TO FILE RESPONSE
TO DEFENDANTS’ MOTION TO
DISMISS
Dkt. 9

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Plaintiffs, acting pro se, filed a largely unintelligible Complaint in this Court on June
24, 2011. The parties are presently before the Court on Defendant American Home
Mortgage Servicing and Mortgage Electronic Registration System, Inc.’s motion to
dismiss. Dkt. 9. The motion currently is noticed for hearing on January 31, 2012. Dkt. 21.
Under Local Rule 7-3, any opposition or statement of non-opposition was due no later than
two weeks after the motion was filed. Since the motion was filed on September 13, 2011,
Plaintiffs’ opposition was due by September 27, 2011. To date, however, no response to
the motion has been filed.
Paragraph 8 of the Court’s Standing Orders expressly warns as follows: “Effect of
Failing to Oppose a Motion: The failure of the opposing party to timely file a
memorandum of points and authorities in opposition to any motion or request shall
constitute a consent to the granting of the motion.” Dkt. 8 at 5. Notwithstanding the
requirements of Civil Local Rule 7-3, and the Court’s warning in its Standing Orders,
Plaintiffs have 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

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in the manner prescribed by the Court’s Local Rules is grounds for dismissal. Ghazali v.

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Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). Nevertheless, the Court will sua sponte

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afford Plaintiffs an additional opportunity to file a response to Defendants’ motion to

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dismiss. While the Court does not countenance Plaintiffs’ disregard of the Local Rules, the

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Court grants such extension in consideration of less drastic alternatives to dismissal. See

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Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). Nonetheless, Plaintiffs are

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warned that the failure to file an opposition by the deadline set by the Court will be deemed

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grounds for dismissing the action under Rule 41(b), without further notice. Accordingly,

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IT IS HEREBY ORDERED THAT:
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Plaintiffs shall file their response to Defendants’ motion to dismiss by no later

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than January 25, 2012. If Plaintiffs do not intend to prosecute this action, they should file

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a stipulation for dismissal under Rule 41(b), a request for dismissal under Rule 41(a), or a

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statement of non-opposition by that deadline. The failure timely comply with this Order

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will result in the dismissal of the action. If applicable, Defendants may file a reply by no

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later than February 7, 2012.

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2.

Both the motion hearing and the Case Management Conference scheduled for

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January 30, 2012, are CONTINUED to March 6, 2012 at 1:00 p.m. Pursuant to Federal

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Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court, in its discretion, may

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resolve the motion without oral argument, prior to the new hearing date. The parties are

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advised to check the Court’s website to determine whether a court appearance is required.

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IT IS SO ORDERED.
Dated: January 10, 2012

_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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ALICIA G ATIENZA et al,
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Plaintiff,
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v.
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AMERICAN BROKERS et al,
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Defendant.
/

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Case Number: CV11-03152 SBA
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CERTIFICATE OF SERVICE
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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.

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That on January 12, 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.

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Alicia G. Atienza
136 Saint Francis Bouldvard
San Francisco, CA 94127

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Clodualdo A. Atienza
136 Saint Francis Bouldvard
San Francisco, CA 94127

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Dated: January 12, 2012
Richard W. Wieking, Clerk

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By: LISA R CLARK, Deputy Clerk
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