IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 5, 2010
PETER PAIZ, PLAINTIFF,
JP MORGAN CHASE BANK, N.A.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS (MERS); FEDERAL SAVINGS BANK; AND AMTRUST BANK, DEFENDANTS.
ORDER AND FINDINGS AND RECOMMENDATIONS
This case, in which plaintiff is 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 June 10, 2009, defendant JP Morgan Chase Bank removed this action from Sacramento County Superior Court to the Northern District of California based on federal question jurisdiction, and on August 7, 2009, the action was transferred to this district from the Northern District of California. Dckt. Nos. 1, 15. On October 2, 2009, defendant JP Morgan Chase Bank filed a motion to dismiss plaintiff's complaint, and defendant AmTrust Bank joined in the motion. Dckt. Nos. 24, 31.
Because plaintiff failed to file a response to defendants' motion to dismiss, on November 20, 2009, the court continued the hearing on the motion to January 13, 2010; ordered plaintiff to show cause, in writing, no later than December 28, 2009, why sanctions should not be imposed for failure to timely file a response to the motion; and directed plaintiff to file an opposition or a statement of non-opposition to the motion no later than December 28, 2009. Dckt. No. 34. The order further provided that "[f]ailure of plaintiff 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 3.
The deadline to respond has passed and the court docket reflects that plaintiff has not responded to the order to show cause nor filed an opposition or statement of non-opposition to defendants' motion. In light of plaintiff's 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 13, 2010 on defendants' motion to dismiss, Dckt. No. 24, is vacated; and
2. The status (pretrial scheduling) conference currently set for hearing on February 24, 2010, is vacated.*fn1
Further, it is RECOMMENDED that:
1. This action be dismissed pursuant to Federal Rule of Civil Procedure 41(b), based on plaintiff's failure to prosecute the action;
2. Defendants' motion to dismiss, Dckt. No. 24, 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).