Benford v. J.P. Morgan Chase Bank, N.A.

Filing 19

DISREGARD ENTRY. ATTACHMENT IS INCORRECT. SEE DKT. NO. 20 FOR CORRECT ENTRY ORDER STRIKING FILING. Court ORDERS Clerk to STRIKE Document No. 19. Signed by Judge Yvonne Gonzalez Rogers on 9/19/13. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 9/19/2013) Modified on 9/20/2013 (fs, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARCUS BENFORD,
Plaintiff,

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Northern District of California

United States District Court

ORDER STRIKING FILING

vs.

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Case No.: 13-CV-3145 YGR

J.P. MORGAN CHASE BANK, N.A. A/K/A
CHASE MORTGAGE SERVICES, INC.,

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Defendant.

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On December 6, 2013, pro se Plaintiff Marcus Benford filed a complaint in California state

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court, challenging alleged irregularities in foreclosure and home loan modification proceedings

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conducted in 2009. Defendant was served on June 10, 2013 and timely removed to this Court on July

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9, 2013. See Dkt. No. 1. Defendant moved to dismiss the complaint on July 16, 2013. Dkt. No. 6.

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Plaintiff’s opposition was due on July 30, 2013. The motion was set for oral argument on September

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17, 2013.1
The July 30 opposition deadline passed without Plaintiff filing an opposition or otherwise

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appearing before this Court. Accordingly, on August 1, 2013, the Court issued an order: extending

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Plaintiff’s time to respond to the pending motion to dismiss to August 15; warning Plaintiff that

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failure to respond would result in dismissal of his case for failure to prosecute; and referring Plaintiff

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to the Court’s Legal Help Center, which may assist pro se plaintiffs who make an appointment. On

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The case was originally assigned to Magistrate Judge Laporte, and the hearing noticed for her
September 17 calendar. However, on July 22, 2013, Defendant declined Magistrate Judge Laporte’s
jurisdiction. Dkt. No. 9. The case was subsequently reassigned to the undersigned judge and
renoticed for her September 17, 2013 calendar.

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August 20, 2013, having received no response from Plaintiff by the extended deadline, the Court

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dismissed Plaintiff’s action without prejudice. Dkt. No. 16. In so doing, the Court vacated the

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September 17 motion hearing. Id. The Clerk served Plaintiff with notice of the Court’s dismissal of

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his case. Dkt. No. 18.

made his first appearance before this Court by filing a document styled as “Plaintiff’s Opposition to

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Defendant[’s] Motion to Dismiss Plaintiff’s Complaint.” Dkt. No. 19. The Court appreciates that

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the Opposition signals Plaintiff’s intent to begin to prosecute his case here in federal court.

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However, although Plaintiff has filed an opposition, there is no motion to dismiss left to oppose.

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Moreover, Plaintiff’s case has already been dismissed. Plaintiff’s filing is therefore without legal

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Northern District of California

On September 19, 2013, two days after Defendant’s motion would have been heard, Plaintiff

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United States District Court

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effect and shall be struck.

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If Plaintiff now intends to prosecute his case, he must first seek to have his case reopened.

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Pursuant to Federal Rule of Civil Procedure 60(b), Plaintiff may file a motion to set aside the Court’s

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previous order of dismissal. Simply filing this motion will not necessarily result in having the case

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reopened; rather, Plaintiff must first make the showing required under the law.

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The Court reminds Plaintiff that he may contact the Court’s Legal Help Center to seek

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assistance with filing his papers. In the time since Plaintiff’s case was dismissed, the Legal Help

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Center has opened a branch in Oakland. Plaintiff may make an appointment with either the San

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Francisco or Oakland Legal Help Center by calling [phone].

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The Court hereby ORDERS the Clerk to STRIKE Docket No. 19.

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IT IS SO ORDERED.

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Date: September 19, 2013

_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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