(SS) Smith v. Social Security Department, No. 2:2010cv01584 - Document 11 (E.D. Cal. 2010)

Court Description: ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/19/10. The Clerk is directed to randomly assign a U.S. District Judge to this case. This case has been ASSIGNED to U.S. District Judge William B. Shubb and Magi strate Judge Edmund F. Brennan for all further proceedings. The New Case Number is: 10cv1584 WBS EFB. IT IS FURTHER RECOMMENDED that this Action be dismissed. Defendant's MOTION to DISMISS 6 be denied as moot. The Clerk be directed to close t his case. These FINDINGS AND RECOMMENDATIONS are submitted to Judge William B. Shubb. Within fourteen days after being served with these Findings and Recommendations, any party may file written objections with the Court and serve a copy on all parties. (Mena-Sanchez, L)

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(SS) Smith v. Social Security Department Doc. 11 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 KENNETH ARDELL SMITH, No. CIV S-10-1584 EFB 11 12 Plaintiff, vs. 13 SOCIAL SECURITY DEPARTMENT, 14 ORDER AND FINDINGS AND RECOMMENDATIONS Defendant. / 15 16 On June 23, 2010, defendant removed this action from Sacramento County Superior 17 Court. Dckt. No. 1. Also on June 23, 2010, the undersigned issued a scheduling order setting 18 forth, among other things, deadlines for the parties to file motions for summary judgment. Dckt. 19 No. 2. However, on August 23, 2010, defendant filed a motion to dismiss this action for lack of 20 subject matter jurisdiction. Dckt. No. 5. Therefore, on August 31, 2010, the undersigned issued 21 an order suspending the deadlines set forth in the June 23 scheduling order and setting a briefing 22 schedule on the motion to dismiss. Dckt. No. 7. Specifically, the August 31 order required 23 plaintiff to file an opposition or a statement of non-opposition to defendant’s motion to dismiss 24 on or before September 27, 2010. Id. 25 26 On October 1, 2010, because plaintiff had not filed an opposition nor a statement of non-opposition to defendant’s motion to dismiss, the undersigned issued an order to plaintiff to 1 Dockets.Justia.com 1 show cause, on or before October 27, 2010, why sanctions should not be imposed for his failure 2 to timely file an opposition or a statement of non-opposition to the pending motion. Dckt. No. 9. 3 The undersigned also directed plaintiff to file an opposition to the motion or a statement of non- 4 opposition thereto on or before October 27, 2010, and informed plaintiff that failure to file an 5 opposition “will be deemed a statement of non-opposition to the pending motion, and may result 6 in a recommendation that this action be dismissed for lack of prosecution. See Fed. R. Civ. P. 7 41(b).” Id. 8 Although the deadlines have now passed, the court docket reflects that plaintiff has not 9 filed a response to the order to show cause, an opposition to defendant’s motion, or a statement 10 of non-opposition to the motion. In light of plaintiff’s failures, the undersigned will recommend 11 that this action be dismissed for failure to prosecute and that defendant’s motion to dismiss be 12 denied as moot. See Fed. R. Civ. P. 41(b); L.R. 110. 13 14 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to randomly assign a United States District Judge to this case. 15 IT IS FURTHER RECOMMENDED that: 16 1. This action be dismissed pursuant to Federal Rule of Civil Procedure 41(b), based on 17 plaintiff’s failure to prosecute the action; 18 2. Defendant’s motion to dismiss, Dckt. No. 5, be denied as moot; and 19 3. The Clerk be directed to close this case. 20 These findings and recommendations are submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 22 after being served with these findings and recommendations, any party may file written 23 objections with the court and serve a copy on all parties. Such a document should be captioned 24 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 25 //// 26 //// 2 1 within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: November 19, 2010. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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