(PS) Paiz v. JP Morgan Chase Bank, N.A. et al, No. 2:2009cv02185 - Document 40 (E.D. Cal. 2010)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 1/5/10: ORDERING that the hearing date of January 13, 2010 on defendants' motion to dismiss, Dckt. No. 24, is vacated. The status (pretrial scheduling) confer ence currently set for hearing on February 24, 2010, is vacated. RECOMMENDING that this action be dismissed based on plaintiff's failure to prosecute the action. Defendants' motion to dismiss, Dckt. No. 24, be denied as moot; and The Clerk of Court be directed to close this case. Objections to F&R due within fourteen days.(Kaminski, H)

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(PS) Paiz v. JP Morgan Chase Bank, N.A. et al Doc. 40 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 PETER PAIZ, 11 12 13 14 15 16 Plaintiff, No. CIV S-09-2185 GEB EFB PS vs. JP MORGAN CHASE BANK, N.A.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS (MERS); FEDERAL SAVINGS BANK; and AMTRUST BANK, ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. _________________________________/ 17 18 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 June 10, 20 2009, defendant JP Morgan Chase Bank removed this action from Sacramento County Superior 21 Court to the Northern District of California based on federal question jurisdiction, and on August 22 7, 2009, the action was transferred to this district from the Northern District of California. Dckt. 23 Nos. 1, 15. On October 2, 2009, defendant JP Morgan Chase Bank filed a motion to dismiss 24 plaintiff’s complaint, and defendant AmTrust Bank joined in the motion. Dckt. Nos. 24, 31. 25 Because plaintiff failed to file a response to defendants’ motion to dismiss, on November 26 20, 2009, the court continued the hearing on the motion to January 13, 2010; ordered plaintiff to 1 Dockets.Justia.com 1 show cause, in writing, no later than December 28, 2009, why sanctions should not be imposed 2 for failure to timely file a response to the motion; and directed plaintiff to file an opposition or a 3 statement of non-opposition to the motion no later than December 28, 2009. Dckt. No. 34. The 4 order further provided that “[f]ailure of plaintiff to file an opposition will be deemed a statement 5 of non-opposition to the pending motion, and may result in a recommendation that this action be 6 dismissed for lack of prosecution. See Fed. R. Civ. P. 41(b).” Id. at 3. 7 The deadline to respond has passed and the court docket reflects that plaintiff has not 8 responded to the order to show cause nor filed an opposition or statement of non-opposition to 9 defendants’ motion. In light of plaintiff’s failures, the undersigned will recommend that this 10 action be dismissed for failure to prosecute and that defendants’ motion to dismiss be denied as 11 moot. See Fed. R. Civ. P. 41(b); L.R. 110. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. The hearing date of January 13, 2010 on defendants’ motion to dismiss, Dckt. No. 24, 14 15 16 is vacated; and 2. The status (pretrial scheduling) conference currently set for hearing on February 24, 2010, is vacated.1 17 Further, it is 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. 24, 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 1 25 26 As a result, the parties are not required to submit status reports as provided in the August 7, 2009 order. See Dckt. No. 18 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. 2 1 after being served with these findings and recommendations, any party may file written 2 objections with the court and serve a copy on all parties. Such a document should be captioned 3 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 4 within the specified time may waive the right to appeal the District Court’s order. Turner v. 5 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 DATED: January 5, 2010. 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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