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Khudoy v. Washington Mutual Bank FA

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 15, 2009

VLADIMIR KHUDOY; LYUDMILA KHUDOY; PLAINTIFFS,
v.
WASHINGTON MUTUAL BANK FA; CALIFORNIA RECONVEYANCE COMPANY, AND DOES 1-250, DEFENDANTS.

ORDER AND FINDINGS AND RECOMMENDATIONS

This case, in which plaintiffs are proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). On September 18, 2009, defendants removed this action from Sacramento County Superior Court based on federal question jurisdiction. Dckt. No. 1. On October 14, 2009, defendants filed a motion to dismiss plaintiffs' complaint, and noticed the motion for hearing on November 18, 2009. Dckt. No. 12.

Because plaintiffs failed to file a response to defendants' motion to dismiss, on November 10, 2009, the court continued the November 18 hearing to January 6, 2010; ordered plaintiffs to show cause, in writing, no later than December 9, 2009, why sanctions should not be imposed on them for their failure to timely file a response to defendants' motion; and directed plaintiffs to file an opposition to the motion, or a statement of non-opposition thereto, no later than December 9, 2009. Dckt. No. 15. The order further provided that "[f]ailure of plaintiffs to file an opposition will be deemed a statement of non-opposition to the pending motion, and may result in a recommendation that this action be dismissed for lack of prosecution. See Fed. R. Civ. P. 41(b)." Id. at 2.

The deadline to respond has passed and the court docket reflects that plaintiffs have not responded to the order to show cause nor filed an opposition or statement of non-opposition to defendants' motion. In light of plaintiffs' failures, the undersigned will recommend that this action be dismissed for failure to prosecute and that defendants' motion to dismiss be denied as moot. See Fed. R. Civ. P. 41(b); L.R. 110.

Accordingly, IT IS HEREBY ORDERED that: 1. The hearing date of January 6, 2010 on defendants' motion to dismiss, Dckt. No. 12, is vacated; and

2. The status (pretrial scheduling) conference currently set for hearing on January 20, 2010, is vacated.*fn1

It is FURTHER RECOMMENDED that:

1. This action be dismissed pursuant to Federal Rule of Civil Procedure 41(b), based on plaintiffs' failure to prosecute the action;

2. Defendants' motion to dismiss, Dckt. No. 12, be denied as moot; and

3. The Clerk of Court be directed to close this case.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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