(PS) Yant v. Wells Fargo Bank, N.A. et al, No. 2:2010cv01756 - Document 16 (E.D. Cal. 2010)

Court Description: ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/1/2010 ORDERING the hearing date of 10/6/2010 on dfts' 9 , 12 motions to dismiss is VACATED; the status (pretrial scheduling) conference currently set f or hearing on 11/17/2010 is VACATED; RECOMMENDING that this action be dismissed pursuant to FRCP 41(b), based on pltf's failure to prosecute the action; dfts' motions to dismiss be denied as moot; and the Clerk of the Court be directed to close this case; Referred to Judge Morrison C. England, Jr. Objections due 14 days after being served with these F & R's. (Reader, L)
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(PS) Yant v. Wells Fargo Bank, N.A. 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 PAUL YANT, 11 12 13 14 Plaintiff, No. CIV S-10-1756 MCE EFB PS vs. WELLS FARGO BANK, N.A.; WELLS FARGO HOME MORTGAGE; FIRST AMERICAN LOANSTAR TRUSTEE SERVICES, LLC, ORDER AND FINDINGS AND RECOMMENDATIONS 15 16 17 Defendants. _________________________________/ This case, in which plaintiff is 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 July 8, 19 2010, defendants removed the action to this court from Sacramento County Superior Court on 20 the ground that plaintiff’s complaint alleges federal claims, and on July 15, 2010, moved to 21 dismiss plaintiff’s complaint. Dckt. Nos. 1, 9, 12. Defendants noticed the motions to be heard 22 on August 25, 2010. Dckt. Nos. 9, 12. On August 13, 2010, because plaintiff had not filed 23 either an opposition or a statement of non-opposition to the motions, the undersigned continued 24 the hearing on defendants’ motions to dismiss to October 6, 2010; ordered plaintiff to show 25 cause, in writing, no later than September 22, 2010, why sanctions should not be imposed for his 26 failure to timely file an opposition or a statement of non-opposition to the pending motions; and 1 Dockets.Justia.com 1 directed plaintiff to file an opposition to the motions, or a statement of non-opposition thereto, 2 no later than September 22, 2010. Dckt. No. 14. The undersigned further stated that “[f]ailure 3 of plaintiff to file an opposition will be deemed a statement of non-opposition to the pending 4 motion, and may result in a recommendation that this action be dismissed for lack of 5 prosecution. See Fed. R. Civ. P. 41(b).” Id. 6 Although the deadlines have now passed, the court docket reflects that plaintiff has not 7 filed a response to the order to show cause, an opposition to defendants’ motions, or a statement 8 of non-opposition to the motions. In light of plaintiff’s failures, the undersigned will recommend 9 that this action be dismissed for failure to prosecute and that defendants’ motions to dismiss be 10 denied as moot. See Fed. R. Civ. P. 41(b); L.R. 110. 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. The hearing date of October 6, 2010 on defendants’ motions to dismiss, Dckt. Nos. 9 13 14 15 and 12, is vacated; and 2. The status (pretrial scheduling) conference currently set for hearing on November 17, 2010, is vacated.1 16 Further, IT IS FURTHER RECOMMENDED that: 17 1. This action be dismissed pursuant to Federal Rule of Civil Procedure 41(b), based on 18 plaintiff’s failure to prosecute the action; 19 2. Defendants’ motions to dismiss, Dckt. Nos. 9 and 12, be denied as moot; and 20 3. The Clerk of Court be directed to close this case. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 1 25 26 As a result, the parties are not required to submit status reports as provided in the July 12, 2010 order. See Dckt. No. 5 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 objections with the court and serve a copy on all parties. Such a document should be captioned 2 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 3 within the specified time may waive the right to appeal the District Court’s order. Turner v. 4 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 DATED: October 1, 2010. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3