(PS) Salgado v. Wells Fargo Bank, et al, No. 2:2010cv02660 - Document 9 (E.D. Cal. 2011)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 3/17/11 ORDERING that the 3/23/11 motion hearing and the 5/25/11 status conference are VACATED; RECOMMENDING that this action be dismissed pursuant to FRCP 41(b); that the 5 Motion to Dismiss be denied as moot and that the Clerk be directed to close this case. Motion referred to Judge John A. Mendez. Objections due within 14 days. (Manzer, C)

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(PS) Salgado v. Wells Fargo Bank, 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 EDMUNDO SALGADO, 11 12 13 14 Plaintiff, No. CIV S-10-2660 JAM EFB PS vs. WELLS FARGO BANK, et al., ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. / 15 16 This case, in which plaintiffs are proceeding pro se, is before the undersigned pursuant to 17 Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). On December 18 27, 2010, defendant Wells Fargo Bank, N.A. (“Wells Fargo”) moved to dismiss plaintiff’s 19 complaint, and noticed the motion to be heard on February 16, 2011. Dckt. No. 5. 20 On February 8, 2011, because plaintiff had not filed either an opposition or a statement of 21 non-opposition to the motion, the undersigned continued the hearing on the motion to March 23, 22 2011; ordered plaintiff to show cause, in writing, no later than March 9, 2011, why sanctions 23 should not be imposed for failure to timely file an opposition or a statement of non-opposition to 24 the pending motion; and directed plaintiff to file an opposition to the motion, or a statement of 25 non-opposition thereto, no later than March 9, 2011. Dckt. No. 7. The undersigned further 26 stated that “[f]ailure of plaintiff to file an opposition will be deemed a statement of non1 Dockets.Justia.com 1 opposition to the pending motion, and may result in a recommendation that this action be 2 dismissed for lack of prosecution. See Fed. R. Civ. P. 41(b).” Id. 3 Although the deadlines have now passed, the court docket reflects that plaintiff has not 4 filed a response to the order to show cause, an opposition to the motion, or a statement of non- 5 opposition to the motion. In light of plaintiff’s failures, the undersigned will recommend that 6 this action be dismissed for failure to prosecute the action and for failure to comply with court 7 orders and Local Rules, and that Wells Fargo’s motion to dismiss be denied as moot. See Fed. 8 R. Civ. P. 41(b); L.R. 110. 9 10 11 12 13 Accordingly, IT IS HEREBY ORDERED that: 1. The hearing date of March 23, 2011 on Wells Fargo’s motion to dismiss, Dckt. No. 5, is vacated; and 2. The status (pretrial scheduling) conference currently set for hearing on May 25, 2011, is vacated.1 14 IT IS FURTHER RECOMMENDED that: 15 1. This action be dismissed pursuant to Federal Rule of Civil Procedure 41(b), based on 16 plaintiff’s failure to prosecute the action and to comply with court orders and Local Rules; 17 2. Wells Fargo’s motion to dismiss, Dckt. No. 5, be denied as moot; and 18 3. The Clerk of Court be directed to close this case. 19 These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 21 after being served with these findings and recommendations, any party may file written 22 objections with the court and serve a copy on all parties. Such a document should be captioned 23 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 24 1 25 26 As a result, the parties are not required to submit status reports as provided in the September 30 and December 27, 2010 orders. See Dckt. Nos. 2, 6. 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 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: March 17, 2011. 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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