-CKD (PS) Stolyarchuk v. AmTrust Bank et al, No. 2:2011cv01670 - Document 24 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/17/2011 RECOMMENDING that this action be dismissed pursuant to FRCP 41(b), based on plaintiff's failure to prosecute the action and to comply with court orders; Def endants AmTrust Bank, Mortgage Electronic Registration Systems, Inc., and Residential Credit Solutions, Inc's motion to dismiss # 11 be denied as moot; The lis pendens recorded by plaintiff on the subject property (xxxx Woodhawk Way, Antelope, CA 95843) be expunged from the official records of the Sacramento County Recorder's Office, and the Clerk of Court be directed to close this case. Referred to Judge Morrison C. England, Jr.; Objections due within 14 days after being served with these F & R's. (Reader, L)
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-CKD (PS) Stolyarchuk v. AmTrust Bank et al Doc. 24 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DMITRIY STOLYARCHUK Plaintiff, 11 12 13 14 15 16 No. CIV S-11-1670 MCE CKD PS vs. AMTRUST BANK et al. Defendants. FINDINGS AND RECOMMENDATIONS / Plaintiff is proceeding pro se in this action, referred to the undersigned pursuant to 17 E.D. Cal. L.R. 302(c)(21). On July 21, 2011, defendants AmTrust Bank, Mortgage Electronic 18 Registration Systems, Inc., and Residential Credit Solutions, Inc. filed a motion to dismiss and a 19 motion for an order expunging the lis pendens recorded by plaintiff. (Dkt. No. 11.) On October 20 11, 2011, plaintiff filed a statement of non-opposition. (Dkt. No. 19.) In the statement of non- 21 opposition, plaintiff requested that the action be dismissed without prejudice. 22 On October 14, 2011, the court ordered defendants to notify the court within 23 seven (7) days whether they have any objection to the dismissal of the action without prejudice. 24 (Dkt. No. 20.) Defendants AmTrust Bank, Mortgage Electronic Registration Systems, Inc. and 25 Residential Credit Solutions, Inc. then filed timely objections, requesting that the action instead 26 be dismissed with prejudice. (Dkt. No. 21.) 1 Dockets.Justia.com Consequently, on October 26, 2011, the court ordered plaintiff, within fourteen 1 2 (14) days, to file either a statement of non-opposition to dismissal of the action with prejudice or 3 an opposition to defendants AmTrust Bank, Mortgage Electronic Registration Systems, Inc., and 4 Residential Credit Solutions, Inc.’s motion to dismiss and motion for an order expunging the lis 5 pendens. (Dkt. No. 23.) Plaintiff was cautioned that failure to comply with the order would 6 result in a recommendation that the action be dismissed with prejudice pursuant to Fed. R. Civ. 7 P. 41(b). (Id.) 8 Although the deadline has now passed, the court docket reflects that plaintiff has 9 not filed a statement of non-opposition to dismissal of the action with prejudice or an opposition 10 to defendants’ motion. In light of plaintiff’s failure to do so, the undersigned will recommend 11 that this action be dismissed for failure to prosecute the action and for failure to comply with 12 court orders, and that defendants’ motion to dismiss be denied as moot. See Fed. R. Civ. P. 13 41(b); L.R. 110. The undersigned will also recommend that the lis pendens recorded by plaintiff 14 on the subject property (4430 Woodhawk Way, Antelope, CA 95843) be expunged from the 15 official records of the Sacramento County Recorder’s Office.1 16 Accordingly, IT IS HEREBY RECOMMENDED that: 17 1. This action be dismissed pursuant to Federal Rule of Civil Procedure 41(b), 18 based on plaintiff’s failure to prosecute the action and to comply with court orders; 2. Defendants AmTrust Bank, Mortgage Electronic Registration Systems, Inc., 19 20 and Residential Credit Solutions, Inc.’s motion to dismiss (dkt. no. 11) be denied as moot; 21 \\\\ 22 1 23 24 25 26 A court “shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim.” Cal. Civ. Proc. Code § 405.32. Even when a plaintiff is given leave to amend a complaint that was dismissed, it is proper for the court to order the lis pendens expunged when the plaintiff fails to establish that he is likely to prevail on the merits. Winding v. NDEX West, LLC, 2011 WL 1080650, at *4 (E.D. Cal. Mar. 21, 2011). Here, because the undersigned recommends that the action be dismissed with prejudice, a recommendation that the lis pendens be expunged is also appropriate. 2 3. The lis pendens recorded by plaintiff on the subject property (4430 Woodhawk 1 2 Way, Antelope, CA 95843) be expunged from the official records of the Sacramento County 3 Recorder’s Office, and 4 4. The Clerk of Court be directed to close this case. 5 These findings and recommendations are submitted to the United States District 6 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 7 (14) days after being served with these findings and recommendations, any party may file written 8 objections with the court and serve a copy on all parties. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 10 shall be served and filed within seven (7) days after service of the objections. Failure to file 11 objections within the specified time may waive the right to appeal the District Court’s order. 12 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 Dated: November 17, 2011 14 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 15 16 17 18 5 19 stolyarchuk.1670.fr.41b.wpd 20 21 22 23 24 25 26 3