(PS) Wilson v. Western Progressive, LLC et al, No. 2:2010cv00171 - Document 14 (E.D. Cal. 2010)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 5/4/2010 ORDERING that the hearing date of May 12, 2010 on defendants' 9 motion to dismiss isVACATED. The status (pretrial scheduling) conference currently set for hearing on May 26, 2010, is VACATED. IT IS FURTHER RECOMMENDED that this action be dismissed pursuant based on plaintiff's failure to prosecute the action; Defendants' 9 motion to dismiss be denied as moot and The Clerk of Court be directed to close this case. Objections due within 14 days after being served with these findings and recommendations. (Duong, D)
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(PS) Wilson v. Western Progressive, LLC et al Doc. 14 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CAROLYN S. WILSON, 11 12 13 14 15 16 17 18 Plaintiff, No. CIV-10-0171 GEB EFB PS vs. WESTERN PROGRESSIVE, LLC; OCWEN LOAN SERVICING, LLC; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; HSBC BANK NEVADA N.A., ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. / This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to 19 Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). On January 22, 20 2010, defendants Ocwen Loan Servicing, LLC, Mortgage Electronic Registration Systems, Inc., 21 and HSBC Bank USA, N.A. (“defendants”) removed the action to this court from Sacramento 22 County Superior Court. On February 1, 2010, defendants moved to dismiss plaintiff’s 23 complaint, and noticed the motion for hearing on March 3, 2010. Dckt. Nos. 1, 9. Plaintiff 24 failed to file either an opposition or a statement of non-opposition to the motion and on February 25 22, 2010, the court continued the hearing on defendants’ motion to April 7, 2010 and ordered 26 plaintiff to show cause, in writing, no later than March 17, 2010, why sanctions should not be 1 Dockets.Justia.com 1 imposed for her failure to timely file an opposition or a statement of non-opposition. The order 2 directed plaintiff to file either an opposition or a statement of non-opposition no later than March 3 17, 2010. Dckt. No. 11. The order further stated that “[f]ailure of plaintiff to file an opposition 4 will be deemed a statement of non-opposition to the pending motion, and may result in a 5 recommendation that this action be dismissed for lack of prosecution. See Fed. R. Civ. P. 6 41(b).” Id. 7 On March 17, 2010, plaintiff filed a response to the order to show cause, stating that her 8 papers were not filed in a timely manner because plaintiff “was in an auto accident which totaled 9 [her] car and left [her] banged, bruised, and broken.” Dckt. No. 12. Plaintiff further stated that 10 she was sorry for the inconvenience and would do her best in the future to have her paperwork in 11 on time. 12 As a result of plaintiff’s March 17, 2010 filing, the February 22, 2010 order to show 13 cause was discharged. Order filed March 24, 2010, Dckt. No. 13. However, plaintiff still had 14 not filed an opposition or a statement of non-opposition to the pending motion. Accordingly, the 15 hearing on the motion to dismiss was “continued one more time to give plaintiff an opportunity 16 to respond to the motion.” Id. Plaintiff was again admonished that a failure to timely file an 17 opposition would be deemed a statement of non-opposition to the pending motion, and may 18 result in a recommendation that defendants’ motion be granted and/or that this action be 19 dismissed for lack of prosecution. Id. Plaintiff was directed to file an opposition or a statement 20 of non-opposition no later than April 21, 2010. Id. 21 The deadline has now passed and the court docket reflects that plaintiff still has not filed 22 an opposition or statement of non-opposition to defendants’ motion. In light of plaintiff’s 23 repeated failures to comply with the local rules and court orders in spite of prior warnings, 24 dismissal for failure to prosecute is warranted. See Fed. R. Civ. P. 41(b); L.R. 110. 25 //// 26 //// 2 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The hearing date of May 12, 2010 on defendants’ motion to dismiss, Dckt. No. 9, is 3 4 5 vacated; and 2. The status (pretrial scheduling) conference currently set for hearing on May 26, 2010, is vacated.1 6 IT IS FURTHER RECOMMENDED that: 7 1. This action be dismissed pursuant to Federal Rule of Civil Procedure 41(b), based on 8 9 plaintiff’s failure to prosecute the action; 2. Defendants’ motion to dismiss, Dckt. No. 9, be denied as moot; and 10 3. The Clerk of Court be directed to close this case. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 13 after being served with these findings and recommendations, any party may file written 14 objections with the court and serve a copy on all parties. Such a document should be captioned 15 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 16 within the specified time may waive the right to appeal the District Court’s order. Turner v. 17 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 DATED: May 4, 2010. 19 20 21 22 23 24 1 25 26 As a result, the parties are not required to submit status reports as provided in the January 22, 2010 order. See Dckt. No. 4 at 2. However, if the recommendation of dismissal herein is not adopted by the district judge, the undersigned will reschedule the status conference and require the parties to submit status reports. 3
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