IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
November 19, 2010
KENNETH ARDELL SMITH, PLAINTIFF,
SOCIAL SECURITY DEPARTMENT, DEFENDANT.
ORDER AND FINDINGS AND RECOMMENDATIONS
On June 23, 2010, defendant removed this action from Sacramento County Superior Court. Dckt. No. 1. Also on June 23, 2010, the undersigned issued a scheduling order setting forth, among other things, deadlines for the parties to file motions for summary judgment. Dckt. No. 2. However, on August 23, 2010, defendant filed a motion to dismiss this action for lack of subject matter jurisdiction. Dckt. No. 5. Therefore, on August 31, 2010, the undersigned issued an order suspending the deadlines set forth in the June 23 scheduling order and setting a briefing schedule on the motion to dismiss. Dckt. No. 7. Specifically, the August 31 order required plaintiff to file an opposition or a statement of non-opposition to defendant's motion to dismiss on or before September 27, 2010. Id.
On October 1, 2010, because plaintiff had not filed an opposition nor a statement of non-opposition to defendant's motion to dismiss, the undersigned issued an order to plaintiff to show cause, on or before October 27, 2010, why sanctions should not be imposed for his failure to timely file an opposition or a statement of non-opposition to the pending motion. Dckt. No. 9. The undersigned also directed plaintiff to file an opposition to the motion or a statement of non-opposition thereto on or before October 27, 2010, and informed plaintiff that failure 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.
Although the deadlines have now passed, the court docket reflects that plaintiff has not filed a response to the order to show cause, an opposition to defendant's motion, or a statement of non-opposition to the motion. In light of plaintiff's failures, the undersigned will recommend that this action be dismissed for failure to prosecute and that defendant's motion to dismiss be denied as moot. See Fed. R. Civ. P. 41(b); L.R. 110.
Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to randomly assign a United States District Judge to this case.
IT IS FURTHER 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. Defendant's motion to dismiss, Dckt. No. 5, 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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