Duenas et al v. Freitas et al

Filing 26

ORDER re 21 MOTION to Dismiss First Amended Complaint filed by Deutsche Bank National Company. Signed by Judge ARMSTRONG on 5/29/13. (lrc, COURT STAFF) (Filed on 5/30/2013)

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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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6 GERARD DUENAS, HAROLD GOLDMAN,

Plaintiffs,

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vs.

Case No: C 13-00836 SBA
ORDER DIRECTING PLAINTIFFS
TO FILE RESPONSE TO
DEFENDANT’S MOTION TO
DISMISS

9 STEVEN FREITAS, AKA STEVE

FREITAS, in his Official and Private
10 Capacity, SONOMA COUNTY SHERIFF’S

DEPARTMENT, KATHRYN STRALEY in
11 her official and private capacity, DEUTSCHE

BANK, NATIONAL TRUST COMPANY,
12 MICHAEL S. AND MARY C.

BASKAUSKAS, DOES 113 15, Inclusive,
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Defendants.

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On May 10, 2013, Defendant Deutsche Bank National Trust Company filed a

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motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. 21. Under

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Civil Local Rule 7-3(a), an opposition to a motion must be filed within fourteen days of the

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date the motion was filed, and the reply is due seven days thereafter. As such, Plaintiffs’

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response to the motion should have been filed by no later than May 24, 2013. To date,

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Plaintiffs have not filed any response to Defendants’ motion.

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This Court’s Standing Orders warn that the failure to file a response to a motion may

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be construed as consent to the relief sought in the unopposed motion. Dkt. 14 at 5. As

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such, it is well within the discretion of the Court to grant Defendants’ motion as unopposed

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and dismiss the action. See Fed. R. Civ. P. 41(b); Ghazali v. Moran, 46 F.3d 52, 53 (9th

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Cir. 1995). Nevertheless, mindful of its obligation to first consider to less drastic

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alternatives, the Court will afford Plaintiffs one further opportunity to respond to the

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pending motion. Accordingly,

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IT IS HEREBY ORDERED THAT Plaintiffs shall have until June 7, 2013 to file

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and serve their response (i.e., either an opposition or a statement of non-opposition) to

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Defendant’s Rule 12(b)(6) motion to dismiss. Plaintiffs’ response is limited to fifteen (15)

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pages and shall comply in all respects with the Federal Rules of Civil Procedure and the

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Court’s Civil Local Rules including, without limitation, Civil Local Rules 7-3 through 7-5.

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PLAINTIFFS ARE WARNED THAT THE FAILURE TO FILE A RESPONSE BY

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THIS DEADLINE AND/OR TO COMPLY WITH THIS ORDER OR ANY OTHER

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APPLICABLE PROCEDURAL RULES WILL RESULT IN THE GRANTING OF

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THE PENDING MOTION AND THE DISMISSAL OF THIS ACTION. In the event

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Plaintiffs timely file a response, Defendant may file a reply seven days after the deadline

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for Plaintiffs’ response.

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IT IS SO ORDERED.
Dated: May 29, 2013

_______________________________
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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GERARD DUENAS et al,

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Plaintiff,
v.
STEVEN FREITAS et al,
Defendant.
/

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Case Number: CV13-00836 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.
That on May 30, 2013, 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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Gerard Duenas
6285 Sonoma Highway 12
Santa Rosa, CA 95409
Harold Goldman
6285 Highway 12
Santa Rosa, CA 95409

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Dated: May 30, 2013
Richard W. Wieking, Clerk

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By: Lisa Clark, Deputy Clerk

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