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Bessonov v. Mortgage

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


November 15, 2010

PETER BESSONOV, TATYANA BESSONOV, PLAINTIFFS,
v.
WACHOVIA MORTGAGE; FIRST HORIZON HOME LOAN; GOLDEN WEST SAVINGS ASSOCIATION SERVICE CO.; AND NDEX WEST LLC, 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 July 16, 2010, defendants Wachovia Mortgage and Golden West Savings Association Service Co. (collectively, "Wachovia") removed the action to this court from Placer County Superior Court on the ground that plaintiffs' complaint alleges federal claims. Dckt. No. 1. Then, on August 5, 2010, Wachovia moved to dismiss and to strike plaintiff's complaint. Dckt. Nos. 5, 7. The motions were noticed to be heard on October 27, 2010. Id.

On October 18, 2010, because plaintiffs had not filed either an opposition or a statement of non-opposition to the motions, the undersigned continued the hearing on the motions to November 24, 2010; ordered plaintiffs to show cause, in writing, no later than November 10, 2010, why sanctions should not be imposed for his failure to timely file an opposition or a statement of non-opposition to the pending motions; and directed plaintiffs to file an opposition to the motions, or a statement of non-opposition thereto, no later than November 10, 2010. Dckt. No. 8. The undersigned further stated that "[f]ailure of plaintiffs to file an opposition will be deemed a statement of non-opposition to the pending motions, and may result in a recommendation that this action be dismissed for lack of prosecution. See Fed. R. Civ. P. 41(b)." Id.

Although the deadlines have now passed, the court docket reflects that plaintiffs have not filed a response to the order to show cause, an opposition to Wachovia's motions, or a statement of non-opposition to the motions. In light of plaintiff's failures, the undersigned will recommend that this action be dismissed for failure to prosecute and that Wachovia's motions to dismiss and to strike 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 November 24, 2010 on Wachovia's motions to dismiss and to strike, Dckt. Nos. 5 and 7, is vacated; and

2. The status (pretrial scheduling) conference currently set for hearing on December 22, 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. Wachovia's motions to dismiss and to strike, Dckt. Nos. 5 and 7, be denied as moot; and

3. The Clerk 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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