(PS)Brown v JP Morgan Chase Bank, et al.,, No. 2:2009cv01594 - Document 16 (E.D. Cal. 2010)

Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 1/20/2010 ORDERING that the hearing date of 1/27/2010 on 13 Motion to Dismiss is vacated. IT IS RECOMMENDED that this action be dismissed based on plaintiff's failure to prosecute the action; 13 Motion to Dismiss be denied as moot; and the Clerk be directed to close this case. Objections to F&R due w/in 14 days. (Matson, R)

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(PS)Brown v JP Morgan Chase Bank, et al., Doc. 16 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CHRISTOPHER BROWN, 11 Plaintiff, 12 13 14 15 16 17 18 No. CIV S-09-1594 FCD EFB PS vs. JP MORGAN CHASE BANK, N.A., AS TRUSTEE FOR CERTIFICATEHOLDERS OF BEAR STEARNS ASSET BACKED SEC CHRISTOPHER BROWN; LOAN CENTER OF CALIFORNIA, INC.; EMC MORTGAGE CORPORATION; MORTGAGE LENDERS FINANCIAL NETWORK, INC.; and DOES 1 through 50, inclusive, ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. _________________________________/ 19 20 This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to 21 Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1); Dckt. No. 12. 22 On June 8, 2009, defendants JP Morgan Chase Bank and EMC Mortgage Corporation 23 (“defendants”) removed this action from Yolo County Superior Court based on federal question 24 jurisdiction. Dckt. No. 1. On July 23, 2009, plaintiff filed a first amended complaint, and on 25 October 1, 2009, defendants filed a motion to dismiss that amended complaint. Dckt. Nos. 7, 13. 26 //// 1 Dockets.Justia.com 1 Because plaintiff failed to file an opposition to the motion to dismiss, on December 7, 2 2009, the undersigned continued the hearing on the motion to dismiss to January 27, 2010; 3 directed plaintiff to show cause, in writing, no later than January 13, 2010, why sanctions should 4 not be imposed for failure to timely file an opposition or a statement of non-opposition to the 5 pending motion; and directed plaintiff to file an opposition to the motion, or a statement of non- 6 opposition thereto, no later than January 13, 2010. Dckt. No. 15. The order further stated that 7 “[f]ailure of plaintiff to file an opposition will be deemed a statement of non-opposition to the 8 pending motion, and may result in a recommendation that this action be dismissed for lack of 9 prosecution. See Fed. R. Civ. P. 41(b).” 10 The deadline to respond has passed and the court docket reflects that plaintiff has not 11 responded to the order to show cause nor filed an opposition or statement of non-opposition to 12 defendants’ motion. In light of plaintiff’s failures, the undersigned will recommend that this 13 action be dismissed for failure to prosecute and that defendants’ motion to dismiss be denied as 14 moot. See Fed. R. Civ. P. 41(b); L.R. 110. 15 Accordingly, IT IS HEREBY ORDERED that the hearing date of January 27, 2010 on 16 defendants’ motion to dismiss, Dckt. No. 13, is vacated. 17 It is FURTHER RECOMMENDED that: 18 1. This action be dismissed pursuant to Federal Rule of Civil Procedure 41(b), based on 19 plaintiff’s failure to prosecute the action; 20 2. Defendants’ motion to dismiss, Dckt. No. 13, be denied as moot; and 21 3. The Clerk of Court be directed to close this case. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 24 after being served with these findings and recommendations, any party may file written 25 objections with the court and serve a copy on all parties. Such a document should be captioned 26 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 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: January 20, 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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