Macedo v. Deutsche Bank National Trust Company et al

Filing 15

ORDER Granting 13 Defendant's Ex Parte Application of Dismissal and Denying 12 Plaintiff's Motion. This matter is Dismissed With Prejudice and Judgment shall be entered in favor of Defendants. Signed by Judge Thomas J. Whelan on 7/10/2014. (srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RICARDO MACEDO,

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CASE NO. 13-CV-3068 W (BGS)
Plaintiff,

ORDER GRANTING
DEFENDANT’S EX PARTE
APPLICATION FOR
JUDGMENT OF DISMISSAL
[DOC. 13] AND DENYING
PLAINTIFF’S MOTION
[DOC. 12]

v.
COUNTRYWIDE HOME LOANS,
INC.,

Defendant.
Pending before the Court is Defendants’ ex parte application for entry of a
judgment of dismissal pursuant to Federal Rule of Civil Procedure 41(b). Also pending
is Plaintiff’s motion for entry of an order of dismissal without prejudice, which the Court
construes as an opposition to Defendants’ application.
Rule 41(b) provides that “[i]f the plaintiff fails . . . to comply with these rules or
a court order, a defendant may move to dismiss the action or any claim against it.
Unless the dismissal order states otherwise, a dismissal under this subdivision (b) . . .
operates as an adjudication on the merits.”
On April 17, 2014, this Court issued an order granting Defendants’ motion to
dismiss the complaint. (See Doc. No. 9.) However, the order granted Plaintiffs leave
to amend the complaint until May 8, 2014.
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13cv3068w

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To date Plaintiff has not filed an amended complaint, nor has he filed a motion

2 or ex parte application requesting additional time in which to do so. Instead, Plaintiff
3 filed the motion requesting that the case be dismissed without prejudice. The basis for
4 Plaintiff’s request is that the case settled. (See Mt. [Doc. 12], 2:17–18.) Plaintiff’s
5 contention appears false.
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According to Defendants’ reply, the case did not settle. (See Second Schoor Dec.

7 [Doc. 14], ¶¶ 4–5.) Instead, Plaintiff filed the motion seeking dismissal without
8 prejudice after Defendants provided notice that they would be filing the ex parte
9 application. (See Schoor Dec. [Doc. 13-1], ¶ 2, Ex. A.) The Court, therefore, construes
10 Plaintiff’s failure to amend the complaint or seek additional time in which to do so, as
11 a concession to his inability to state a claim against Defendants.
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For these reasons, the Court GRANTS Defendants’ ex parte application

13 [Doc. 13], DENIES Plaintiff’s motion [Doc. 12], and ORDERS this matter
14 DISMISSED WITH PREJUDICE and JUDGMENT shall be entered in favor of
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IT IS SO ORDERED.

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19 DATED: July 10, 2014
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Hon. Thomas J. Whelan
United States District Judge

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Plaintiff and his attorney are reminded that under Rule 11, by presenting a motion to
the court, they are certifying “to the best of the person’s knowledge, information, and belief,
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formed after an inquiry reasonable under the circumstances,” that the factual contentions have
28 evidentiary support. Fed. R. Civ. P. 11(b)(3). Violation of Rule 11 may result in sanctions.
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