(PS) Bessonov et al v. Wachovia Mortgage et al, No. 2:2010cv01885 - Document 9 (E.D. Cal. 2010)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/15/2010. Court orders Hearings on defendants' 5 7 Motions to Dismiss and to Strike, and Status Conference to be VACATED; and RECOMMENDS that action be dismissed pursuant to FRCP 41(b), Wachovia' 5 7 Motions to Dismiss be denied as moot, and Clerk be directed to close case. Within 14 days after being served with these F/R's, any party may file written Objections with Court and serve a copy on all parties. (Marciel, M)
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(PS) Bessonov et al v. Wachovia Mortgage et al Doc. 9 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 PETER BESSONOV, TATYANA BESSONOV, 11 Plaintiffs, No. CIV S-10-1885 JAM EFB PS 12 vs. 13 14 15 16 WACHOVIA MORTGAGE; FIRST HORIZON HOME LOAN; GOLDEN WEST SAVINGS ASSOCIATION SERVICE CO.; and NDEX WEST LLC, ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. __________________________________/ 17 18 This case, in which plaintiffs are 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 July 16, 20 2010, defendants Wachovia Mortgage and Golden West Savings Association Service Co. 21 (collectively, “Wachovia”) removed the action to this court from Placer County Superior Court 22 on the ground that plaintiffs’ complaint alleges federal claims. Dckt. No. 1. Then, on August 5, 23 2010, Wachovia moved to dismiss and to strike plaintiff’s complaint. Dckt. Nos. 5, 7. The 24 motions were noticed to be heard on October 27, 2010. Id. 25 26 On October 18, 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 motions to 1 Dockets.Justia.com 1 November 24, 2010; ordered plaintiffs to show cause, in writing, no later than November 10, 2 2010, why sanctions should not be imposed for his 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 November 10, 2010. Dckt. 5 No. 8. 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 Wachovia’s motions, or a statement 11 of non-opposition to the motions. In light of plaintiff’s failures, the undersigned will recommend 12 that this action be dismissed for failure to prosecute and that Wachovia’s motions to dismiss and 13 to strike be denied as moot. See Fed. R. Civ. P. 41(b); L.R. 110. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. The hearing date of November 24, 2010 on Wachovia’s motions to dismiss and to 16 strike, Dckt. Nos. 5 and 7, is vacated; and 17 18 2. The status (pretrial scheduling) conference currently set for hearing on December 22, 2010, is vacated.1 19 IT IS FURTHER RECOMMENDED that: 20 1. This action be dismissed pursuant to Federal Rule of Civil Procedure 41(b), based on 21 plaintiffs’ failure to prosecute the action; 2. Wachovia’s motions to dismiss and to strike, Dckt. Nos. 5 and 7, be denied as moot; 22 23 and 24 1 25 26 As a result, the parties are not required to submit status reports as provided in the July 19, 2010 and October 18, 2010 orders. See Dckt. Nos. 3, 8. 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 3. The Clerk be directed to close this case. 2 These findings and recommendations are submitted to the United States District Judge 3 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 4 after being served with these findings and recommendations, any party may file written 5 objections with the court and serve a copy on all parties. Such a document should be captioned 6 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 7 within the specified time may waive the right to appeal the District Court’s order. Turner v. 8 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 DATED: November 15, 2010. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3