Caampued et al v. Deutsche Bank National Trust Company et al

Filing 40

ORDER DENYING PLAINTIFFS 5 MOTION TO CONSOLIDATE, DISMISSING CASE FOR FAILURE TO PROSECUTE AND EXPUNGING LIS PENDENS. **Terminated Motions: 12 , 15 , 24 **Signed by Judge Claudia Wilken on 5/10/2012. (ndr, COURT STAFF) (Filed on 5/10/2012)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 HERNANDO CAAMPUED; and CECILIA CAAMPUED, Plaintiffs, 6 7 8 9 United States District Court For the Northern District of California 10 11 v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee for Harborview Mortgage Loan Trust 2006-8; MERIDIAN FORECLOSURE SERVICE; and MORTGAGE ELECTRONICS REGISTRATION SYSTEMS, INC., also known as MERS, ORDER DENYING PLAINTIFFS’ MOTION TO CONSOLIDATE, DISMISSING CASE FOR FAILURE TO PROSECUTE AND EXPUNGING LIS PENDENS Defendants. 12 13 No. C 12-1223 CW ________________________________/ Plaintiffs Cecilia and Hernando Caampued move to consolidate 14 the instant case with another previously pending in federal court. 15 Defendants Deutsche Bank National Trust Company and Mortgage 16 Electronic Registration Systems, Inc. (MERS) oppose Plaintiffs’ 17 motion and move to dismiss this case and to expunge the lis 18 pendens. Defendant Meridian Foreclosure Service separately moves 19 to dismiss this action. Plaintiffs have not opposed any of 20 Defendants’ motions. The Court takes the parties’ motions under 21 submission on the papers, and having considered their papers, the 22 Court DENIES Plaintiffs’ motion to consolidate, DISMISSES the case 23 for failure to prosecute and ORDERS the lis pendens expunged. 24 Plaintiffs, who are represented by counsel, initiated the 25 instant case on March 12, 2012, seeking to void Defendants’ power 26 of sale and asserting various claims against Defendants. 27 28 1 The following day, on March 13, 2012, Plaintiffs removed from 2 state court a separate action pending against them, Deutsche Bank 3 Nat. Trust Co. v. Caampued, and it was assigned Case No. 12-1244 4 CRB. 5 Bank National Trust Company, which is also one of the Defendants 6 in this case. 7 That case, for unlawful detainer, was brought by Deutsche On March 17, 2012, Plaintiffs filed a motion to consolidate 8 the two cases pursuant to Federal Rule of Civil Procedure 42. 9 Docket No. 5. Subsequently, on March 27, 2012, a judge of this United States District Court For the Northern District of California 10 court found that there was no basis for federal jurisdiction in 11 the unlawful detainer action and granted Deutsche Bank’s motion to 12 remand it to state court. 13 Caampued, 2012 WL 1036894 (N.D. Cal.). 14 Procedure 42 allows the Court to consolidate “actions before the 15 court” if they “involve a common question of law or fact.” 16 Generally, Rule 42 only applies to cases that are properly before 17 the same court. 18 (9th Cir. 1972). 19 this Court with which this case can be consolidated, Plaintiffs’ 20 motion to consolidate is DENIED. 21 Deutsche Bank Nat. Trust Co. v. Federal Rule of Civil Or. Egg Producers v. Andrew, 458 F.2d 382, 383 Because there is no case properly pending before On April 12, 2012, Defendants Deutsche Bank and MERS filed 22 motions to dismiss the case in its entirety and to expunge the lis 23 pendens. 24 Docket Nos. 12 and 15. On April 13, 2012, this case was re-assigned to the 25 undersigned. 26 the three pending motions were vacated and counsel was directed to 27 re-notice the hearings. In the order reassigning the case, the hearings on On April 17, 2012, a clerk’s notice was 28 2 1 also issued, noting that the previous briefing schedules for the 2 motions remained in effect. 3 On April 18, 2012, Defendant Meridian Foreclosure Service 4 filed a new motion to dismiss Plaintiffs’ complaint in its 5 entirety or for a more definite statement. 6 Pursuant to Local Rule 7-3, Plaintiffs’ opposition to this motion 7 was due by May 2, 2012. 8 9 United States District Court For the Northern District of California 10 Docket No. 24. Subsequently, on April 20, 2012, Defendants Deutsche Bank and MERS re-filed their pending motions as new motions. On April 23, 2012, the Court terminated Defendants Deutsche 11 Bank and MERS’s duplicative motions. 12 reiterated that the previous briefing schedules remained in effect 13 for those motions, and specifically noted that Plaintiffs’ 14 oppositions to those motions were due by April 26, 2012. 15 At that time, the Court As of the date of this Order, Plaintiffs have failed to 16 oppose any of Defendants’ motions, although they were provided 17 several reminders of the deadlines by which they were required to 18 do so. 19 prosecute and EXPUNGES the lis pendens. Accordingly, the Court DISMISSES the case for failure to 20 This Order terminates Docket Nos. 5, 12, 15 and 24. 21 IT IS SO ORDERED. 22 23 24 Dated: 5/10/2012 CLAUDIA WILKEN United States District Judge 25 26 27 28 3

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