Nera et al v. American Home Mortgage Servicing, Inc. et al

Filing 31

ORDER by Judge Whyte 1) ordering plaintiffs to show cause why this action should not be dismissed for failure to prosecute, hearing to be held on 1/8/10 at 9:00 a.m., and plaintiffs' response to the order to show cause shall be filed no later th an Friday, 12/18/09; 2) granting 16 Motion to Dismiss with leave to amend, any amendment shall be filed no later than 12/18/09; and granting 17 Motion to Expunge Lis Pendens and setting briefing schedule on defendant's request for attorney's fees and costs. (rmwlc3, COURT STAFF) (Filed on 12/14/2009)

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1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant American Home Mortgage Servicing, Inc.'s motion to dismiss the First Amended Complaint and motion to expunge a lis pendens came on for hearing before the court on December 11, 2009. Plaintiffs' opposition papers, although due 21 days before the hearing under Civil Local Rule 7-2(a), were not filed until the afternoon of December 10, 2009, the day before the hearing. Plaintiffs' counsel did not appear at the hearing.1 Plaintiffs have a demonstrated history in this action of failing to comply with the court's deadlines. They apparently have not served defendant Sadek, Inc., even though this action was filed 1 E-FILED on 12/14/09 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION CHRISREY NERA, an Individual, and CHARITO NERA, an Individual, Plaintiffs, v. AMERICAN HOME MORTGAGE SERVICING, INC., a Delaware Corporation; SADEK, INC., a California Corporation; and DOES 1 through 10, inclusive, Defendants. ORDER GRANTING DEFENDANT AMERICAN HOME MORTGAGE SERVICING, INC.'S MOTION TO DISMISS AND GRANTING MOTION TO EXPUNGE LIS PENDENS; ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE [Re Docket Nos. 16 and 17] No. C-09-2025 RMW Plaintiffs also failed to attend the hearing on the previous motion to dismiss. ORDER GRANTING DEFENDANT AMERICAN HOME MORTGAGE SERVICING, INC.'S MOTION TO DISMISS AND GRANTING MOTION TO EXPUNGE LIS PENDENS;ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE--No. C-09-2025 RMW TER 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 on May 8, 2009. Plaintiffs filed late opposition papers in response to defendant American Home Mortgage Servicing's initial motion to dismiss, and did not appear at the hearing on that motion. Although granted leave to amend, plaintiffs' amended complaint was not filed within the deadline set forth in the court's order granting leave to amend. Plaintiffs failed to comply with their obligation to meet and confer in good faith in connection with the preparation of the Joint Case Management Conference Statement required by Civil Local Rule 16-9 and the court's standing order. Finally, plaintiffs did not file a timely opposition to the present motions, nor did plaintiffs appear at the hearing on the motions or at the case management conference. Accordingly, plaintiffs are ordered to show cause why this action should not be dismissed for their failure to diligently prosecute. A show cause hearing shall be conducted on January 8, 2010 at 9:00. Plaintiffs shall file a response to this order setting forth what they consider to be good cause no later than Friday, December 18, 2009. With regard to defendant's motion to dismiss, the motion is granted with leave to amend. Plaintiffs shall file an amended complaint on or before December 18, 2009 stating specific facts separately demonstrating how each defendant is liable for the claims asserted against it. Failure to timely do so will result in a dismissal with prejudice. With regard to defendant's motion to expunge the lis pendens, plaintiffs have failed to carry their burden of establishing that they have a probability of succeeding on their real property claim. Cal. C. Civ. P. 405.32. Therefore, the Notice of Pendency of Action recorded on May 18, 2009 in the Office of the Recorder of Monterey County as Document No. 2009030398 in connection with this action is hereby expunged. Plaintiffs may not record another notice of pendency of action (lis pendens) without leave of court. Cal. Civ. P. 405.36. Defendant may pursue its attorney's fees and costs of making its motion by filing and serving proof of its attorney's fees and costs on or before December 24, 2009. Plaintiffs' response, if any, shall be filed and served no later than Friday, January 8, 2010. DATED: 12/14/09 RONALD M. WHYTE United States District Judge ORDER GRANTING DEFENDANT AMERICAN HOME MORTGAGE SERVICING, INC.'S MOTION TO DISMISS AND GRANTING MOTION TO EXPUNGE LIS PENDENS;ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE--No. C-09-2025 RMW TER 2 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Notice of this document has been electronically sent to: Counsel for Plaintiff: Carlo Ocampo Reyes carloreyes@att.net Counsel for Defendants: Nina Huerta nhuerta@lockelord.com Counsel are responsible for distributing copies of this document to co-counsel that have not registered for e-filing under the court's CM/ECF program. Dated: 12/14/09 TER Chambers of Judge Whyte ORDER GRANTING DEFENDANT AMERICAN HOME MORTGAGE SERVICING, INC.'S MOTION TO DISMISS AND GRANTING MOTION TO EXPUNGE LIS PENDENS;ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE--No. C-09-2025 RMW TER 3

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