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

Filing 13

ORDER re 4 MOTION to Dismiss Plaintiff's Complaint for Failure to State a Claim Upon Which Relief Can Be Granted, Failure to Join an Indispensible Party; Memorandum of Points and Authorities filed by Sharon Zuniga, Wells Fargo Bank, N.A.. Signed by Judge ARMSTRONG on 2/2/12. (lrc, COURT STAFF) (Filed on 2/2/2012)

1
2

UNITED STATES DISTRICT COURT

3

FOR THE NORTHERN DISTRICT OF CALIFORNIA

4

OAKLAND DIVISION

5
6

ANNA MCCLAIN, an individual,
Plaintiff,

7
8
9
10

vs.
WELLS FARGO BANK, N.A., et al.,

Case No: C 11-5020 SBA
ORDER DIRECTING PLAINTIFF
TO FILE RESPONSE TO
DEFENDANTS’ MOTION TO
DISMISS
Dkt. 4

Defendants.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

On October 18, 2011, Defendants filed a motion to dismiss. Dkt. 4. The motion is
scheduled for hearing on March 13, 2012. Under Local Rule 7-3, any opposition or
statement of non-opposition was due no later than two weeks after the motion was filed.
As such, Plaintiff’s response was due by November 1, 2011. To date, however, no
response to the motion has been filed.
“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
afford Plaintiff an additional opportunity to file a response to Defendants’ motion to
dismiss. While the Court does not countenance Plaintiff’s disregard of the Local Rules, the
Court grants such extension in consideration of less drastic alternatives to dismissal. See
Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). Nonetheless, Plaintiff is warned
that the failure to file an opposition by the deadline set by the Court will be deemed
grounds for dismissing the action under Rule 41(b), without further notice. Accordingly,

1

IT IS HEREBY ORDERED THAT:

2

1.

Plaintiff shall file her response to Defendants’ motion to dismiss by no later

3

than February 16, 2012. If Plaintiff does not intend to prosecute this action, she should

4

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

5

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

6

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

7

later than February 23, 2012.

8
9

2.

Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-

1(b), the Court, in its discretion, may resolve the motion without oral argument, prior to the

10

new hearing date. The parties are advised to check the Court’s website to determine

11

whether a court appearance is required.

12
13

IT IS SO ORDERED.
Dated: February 2, 2012

_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2-

1
2

UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

3
MCCLAIN et al,
4
Plaintiff,
5
v.
6
WELLS FARGO BANK, N.A. et al,
7

Defendant.
/

8
9

Case Number: CV11-05020 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 February 2, 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

Anna McClain
1968 Marques Avenue
San Jose, CA 95125

19
20
Dated: February 2, 2012
21

Richard W. Wieking, Clerk
By: LISA R CLARK, Deputy Clerk

22
23
24
25
26
27
28
-3-