-CKD (PS) Pena v. Wells Fargo Bank NA et al, No. 2:2011cv01761 - Document 16 (E.D. Cal. 2011)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 9/23/11 ORDERING hearing date of 10/12/11 on 6 , 7 , 17 Motions is VACATED and RECOMMENDING that this action be dismissed based on plaintiff's failure to prosecute the action and to comply with court orders and Local Rules; RECOMMENDING 6 and 7 Motions be denied as moot; and closure of case. Referred to Judge Lawrence K. Karlton. Objections to F&R due 14 days after being served with these findings and recommendations. (Meuleman, A)

Download PDF

-CKD (PS) Pena v. Wells Fargo Bank NA 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 MARIA PENA, 11 12 13 Plaintiff, CIV. NO. S-11-1761 LKK CKD PS vs. WELLS FARGO BANK NA, et al., 14 Defendants. 15 ORDER AND FINDINGS AND RECOMMENDATIONS / 16 This case, in which plaintiff is proceeding pro se, is before the undersigned 17 pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). On 18 July 8, 2011, defendants filed a motion to dismiss and motion to strike. The motions were 19 noticed to be heard on August 25, 2011 and continued by minute order for hearing on September 20 7, 2011. 21 On August 26, 2011, because plaintiff had not filed either an opposition or a 22 statement of non-opposition to the motions, the undersigned continued the hearing on the 23 motions to October 12, 2011; ordered plaintiff to show cause, in writing, no later than September 24 21, 2011, why sanctions should not be imposed for failure to timely file an opposition or a 25 statement of non-opposition to the pending motions; and directed plaintiff to file an opposition to 26 the motions, or a statement of non-opposition thereto, no later than September 21, 2011. The 1 Dockets.Justia.com 1 undersigned further stated that “[f]ailure of plaintiff to file an opposition will be deemed a 2 statement of non-opposition to the pending motion, and may result in a recommendation that this 3 action be dismissed for lack of prosecution. See Fed. R. Civ. P. 41(b).” Id. 4 Although the deadlines have now passed, the court docket reflects that plaintiff 5 has not filed a response to the order to show cause, an opposition to the motions, or a statement 6 of non-opposition to the motions. In light of plaintiff’s failures, the undersigned will recommend 7 that this action be dismissed for failure to prosecute the action and for failure to comply with 8 court orders and Local Rules, and that defendants’ motions to dismiss and to strike be denied as 9 moot. See Fed. R. Civ. P. 41(b); L.R. 110. 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. The hearing date of October 12, 2011, on defendants’ motions to dismiss and 12 to strike, is vacated; and 13 IT IS HEREBY RECOMMENDED that: 14 1. This action be dismissed pursuant to Federal Rule of Civil Procedure 41(b), 15 based on plaintiff’s failure to prosecute the action and to comply with court orders and Local 16 Rules; 17 18 2. Defendants’ motions to dismiss and to strike (dkt. nos. 6, 7) be denied as moot; and 19 3. The Clerk of Court be directed to close this case. 20 These findings and recommendations are submitted to the United States District 21 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 22 days after being served with these findings and recommendations, any party may file written 23 objections with the court and serve a copy on all parties. Such a document should be captioned 24 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 25 \\\\ 26 \\\\ 2 1 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 2 Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: September 23, 2011 4 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 5 6 7 4 pena.nop.57 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.