(PS) Rotaru et al v PNC Mortgage, et al, No. 2:2010cv03036 - Document 19 (E.D. Cal. 2011)

Court Description: ORDER and FINDINGS & RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/7/2011. The hearing dates for 12 13 Motions to Dismiss, to Strike, and Status Conference are VACATED; and RECOMMENDING that action be dismissed pursuant to FRC P 41(b); PNC's 12 13 Motions to Dismiss be denied as moot; and Clerk be directed to close case. Within 14 days after being served with these F/Rs, any party may file written Objections with Court and serve a copy on all parties. (Marciel, M)

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(PS) Rotaru et al v PNC Mortgage, et al Doc. 19 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 IVAN ROTARU, RAISA ROTARU, 11 Plaintiffs, No. CIV S-10-3036 WBS EFB PS 12 vs. 13 14 PNC MORTGAGE; CAL-WESTERN RECONVEYANCE; NATIONAL CITY MORTGAGE, 15 ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 16 17 / This case, in which plaintiffs are proceeding pro se, is before the undersigned pursuant to 18 Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). On November 19 10, 2010, defendant PNC Bank, National Association, as successor by merger to National City 20 Bank, previously dba National City Mortgage (named as “PNC Mortgage” and “National City 21 Mortgage”) (“PNC”) removed this action from Sacramento County Superior Court pursuant to 22 28 U.S.C. §§ 1331, 1441, and 1446, on the ground that plaintiffs’ complaint alleges federal 23 claims. Dckt. No. 1. Then, on November 17, 2010, PNC moved to dismiss and to strike the 24 complaint and noticed the motions to be heard on December 29, 2010. Dckt. Nos. 12, 13. 25 26 On December 22, 2010, because plaintiffs had not filed either an opposition or a statement of non-opposition to the motions, the undersigned continued the hearing on the 1 Dockets.Justia.com 1 motions to February 16, 2011; ordered plaintiffs to show cause, in writing, no later than February 2 2, 2011, why sanctions should not be imposed for failure to timely file an opposition or a 3 statement of non-opposition to the pending motions; and directed plaintiffs to file an opposition 4 to the motions, or a statement of non-opposition thereto, no later than February 2, 2011. Dckt. 5 No. 16. The undersigned further stated that “[f]ailure of plaintiffs to file an opposition will be 6 deemed a statement of non-opposition to the pending motions, and may result in a 7 recommendation that this action be dismissed for lack of prosecution. See Fed. R. Civ. P. 8 41(b).” Id. 9 Although the deadlines have now passed, the court docket reflects that plaintiffs have not 10 filed a response to the order to show cause, an opposition to the motions, or a statement of non- 11 opposition to the motions. In light of plaintiffs’ failures, the undersigned will recommend that 12 this action be dismissed for failure to prosecute the action and to comply with court orders and 13 Local Rules and that PNC’s motions to dismiss and to strike be denied as moot. See Fed. R. Civ. 14 P. 41(b); L.R. 110. 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. The hearing date of February 16, 2011 on PNC’s motions to dismiss and to strike, 17 Dckt. Nos. 12 and 13, is vacated; and 18 19 2. The status (pretrial scheduling) conference currently set for hearing on March 30, 2011, is vacated.1 20 IT IS FURTHER RECOMMENDED that: 21 1. This action be dismissed pursuant to Federal Rule of Civil Procedure 41(b), based on 22 plaintiffs’ failure to prosecute the action and to comply with court orders and Local Rules; 23 //// 24 1 25 26 As a result, the parties are not required to submit status reports as provided in the November 18, 2010 order. See Dckt. No. 14. 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. 2 1 2. PNC’s motions to dismiss and to strike, Dckt. Nos. 12 and 13, be denied as moot; and 2 3. The Clerk be directed to close this case. 3 These findings and recommendations are submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 5 after being served with these findings and recommendations, any party may file written 6 objections with the court and serve a copy on all parties. Such a document should be captioned 7 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 8 within the specified time may waive the right to appeal the District Court’s order. Turner v. 9 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 10 DATED: February 7, 2011. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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