Herrera et al v. Recontrust Company, N.A. et al

Filing 22

ORDER to Show Cause Why Case Should Not be Dismissed for Failure to Prosecute. Order to Show Cause Hearing set for 1/11/2012 02:00 PM. Signed by Judge Lucy H. Koh on 12/9/11. (Attachments: # 1 Certificate/Proof of Service Pro Se, # 2 Certificate/Proof of Service Pro Se)(lhklc3, COURT STAFF) (Filed on 12/9/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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NELSON R. HERRERA, an individual;
NENEBETH T. HERRERA, an individual,

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Plaintiffs,
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v.
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COUNTRYWIDE KB HOME LOANS, A
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COUNTRYWIDE MORTGAGE VENTURES )
LLC, a Delaware Limited Liability Corporation; )
BAC HOME LOAN SERVICING, LP, a
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Business Entity, form unknown; CITIBANK,
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N.A.; RECONTRUST COMPANY, a Business )
Entity, form unknown; MORTGAGE
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ELECTRONIC REGISTRATION SYSTEMS, )
INC., a Delaware Corporation; and DOES 1
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through 50, inclusive,
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Defendants.
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Case No.: 5:11-CV-03591-LHK
ORDER TO SHOW CAUSE WHY CASE
SHOULD NOT BE DISMISSED FOR
FAILURE TO PROSECUTE

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Plaintiffs Nelson R. Herrera and Nenebeth T. Herrera (collectively “Plaintiffs”) filed their
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complaint in state court on June 2, 2011, which Defendants then removed to federal court on July
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21, 2011. See ECF No. 1. On July 27, 2011, Defendants Bank of America, N.A., successor-by24
merger to Countrywide Mortgage Ventures, LLC (erroneously sued as “Countrywide KB Home
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Loans, a Countrywide Mortgage Ventures, LLC”) (“Countrywide”), and successor-by-merger to
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BAC Home Loans Servicing, LP (erroneously sued as “BAC Home Loan Servicing, LP”)
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(“BAC”); ReconTrust Company, N.A. (“ReconTrust”); and Mortgage Electronic Registration
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Case No.: 11-cv-03591-LHK
ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE

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Systems, Inc. (“MERS”) (collectively “Moving Defendants”) filed a Motion to Dismiss all twenty-

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nine claims pursuant to Federal Rule of Civil Procedure 12(b)(6) as barred by the doctrine of res

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judicata and for failure to state a claim upon which relief can be granted, see ECF No. 6, which

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Moving Defendants re-noticed on October 7, 2011, after this case was reassigned to the

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undersigned, see ECF No. 18. Defendant Citibank, N.A. (“Citibank”) filed a Notice of Joinder in

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Moving Defendants’ Motion to Dismiss. Pursuant to Civil Local Rule 7-3(a), Plaintiffs’ opposition

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to the motion to dismiss was due on October 21, 2011. As of today, December 9, 2011, Plaintiffs

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have not filed an opposition or statement of nonopposition to Defendants’ motion to dismiss. The

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Court hereby VACATES the December 15, 2011 hearing on Defendants’ Motion to Dismiss and

United States District Court
For the Northern District of California

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initial case management conference.
Furthermore, the Court ORDERS Plaintiffs to show cause why this case should not be

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dismissed for failure to prosecute. This Order does not authorize Plaintiff to file an untimely

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opposition to Defendants’ motion to dismiss. Plaintiffs have until January 3, 2012 to file a

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response to this Order to Show Cause. A hearing on this Order to Show Cause is set for

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Wednesday, January 11, 2012 at 2:00 P.M. Plaintiffs’ failure to respond to this Order and to

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appear at the January 11, 2012 hearing will result in dismissal with prejudice for failure to

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prosecute.

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In the event that Plaintiffs timely file a response to this Order, Defendant Citibank is on

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notice that the Court may at that time request supplemental briefing as to why Citibank’s joinder in

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Moving Defendants’ Motion to Dismiss is proper given that Citibank was not a party to the

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relevant prior action, contrary to Moving Defendants’ representation in footnote 1 of their Motion.

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IT IS SO ORDERED.

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Dated: December 9, 2011

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 11-cv-03591-LHK
ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE