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Wilson v. Western Progressive

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


March 23, 2010

CAROLYN S. WILSON, PLAINTIFF,
v.
WESTERN PROGRESSIVE, LLC; OCWEN LOAN SERVICING, LLC; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; HSBC BANK NEVADA N.A., DEFENDANTS.

ORDER

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 January 22, 2010, defendants Ocwen Loan Servicing, LLC, Mortgage Electronic Registration Systems, Inc., and HSBC Bank USA, N.A. ("defendants") removed the action to this court from Sacramento County Superior Court on the basis of complete diversity pursuant to 28 U.S.C. §§ 1332 and 1441. On February 1, 2010, defendants moved to dismiss plaintiff's complaint, and noticed the motion for hearing on March 3, 2010. Dckt. Nos. 1, 9. On February 22, 2010, because plaintiff had not filed either an opposition or a statement of non-opposition to the motion, the undersigned continued the hearing on defendants' motion to dismiss to April 7, 2010; ordered plaintiff to show cause, in writing, no later than March 17, 2010, why sanctions should not be imposed for her failure to timely file an opposition or a statement of non-opposition to the pending motion; and directed plaintiff to file an opposition to the motion, or a statement of non-opposition thereto, no later than March 17, 2010. Dckt. No. 11. The undersigned further stated 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.

On March 17, 2010, plaintiff filed a response to the order to show cause, stating that her papers were not filed in a timely manner because plaintiff "was in an auto accident which totaled [her] car and left [her] banged, bruised, and broken." Dckt. No. 12. Plaintiff further stated that she is sorry for the inconvenience and will do her best in the future to have her paperwork in on time. As a result of plaintiff's March 17, 2010 filing, the February 22, 2010 order to show cause is discharged.

However, court records reveal that plaintiff still has not filed an opposition or a statement of non-opposition to the pending motion, as required by the Local Rules and by the February 22, 2010 order. Accordingly, the hearing on the motion to dismiss will be continued one more time to give plaintiff an opportunity to respond to the motion. Plaintiff is again admonished, however, that a failure to timely file an opposition will be deemed a statement of non-opposition to the pending motion, and may result in a recommendation that defendants' motion be granted and/or that this action be dismissed for lack of prosecution.

Accordingly, good cause appearing, IT IS HEREBY ORDERED that:

1. The hearing on defendants' motion to dismiss is continued to May 12, 2010 at 10:00 a.m. in Courtroom No. 24.

2. Plaintiff shall file an opposition to the motion, or a statement of non-opposition thereto, no later than April 21, 2010. Failure 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).

3. Defendants may file a reply to plaintiff's opposition, if any, on or before April 28, 2010.

SO ORDERED.

20100323

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