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Dennis Ward Mcfadden v. Deutsche Bank National Trust Company

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


January 4, 2011

DENNIS WARD MCFADDEN; MARCIA-ANN WILLARDSON, PLAINTIFFS,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, IN TRUST FOR THE REGISTERED HOLDERS OF ARGENT SECURITIES INC., ASSET BACKED PASS THROUGH CERTIFICATES, SERIES 2003-W6, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

On November 10, 2010, plaintiffs filed an Amended Verified Complaint ("Amended Complaint") in this action.*fn1 (Dkt. No. 5.) Several motions are pending before this court.

On December 7, 2010, defendant Citi Residential Lending, Inc. filed a motion to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 15.) Also on December 7, 2010, defendants Fidelity National Title Company and Default Resolution Network Division filed a motion to dismiss plaintiff's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 16.)

On December 6, 2010, defendants Robert J. Jackson & Associates, Inc. and David J. Boyer filed a special motion to strike plaintiff's "Complaint"*fn2 pursuant to California's AntiSLAPP provision, Cal. Civ. Proc. Code. § 425.16, and to dismiss plaintiff's "Complaint" pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn3 (Dkt. No. 13.) However, on December 10, 2010, defendants Robert J. Jackson & Associates, Inc. and David J. Boyer, as well as several additional defendants named in this action, filed another notice of motion and motion, which was subsequently amended, which moves to dismiss plaintiff's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and seeks a more definite statement pursuant to Federal Rule of Civil Procedure 12(e). (Dkt. No. 18, 19.) It is not entirely clear whether defendants Robert J. Jackson & Associates, Inc. and David J. Boyer intend the amended motion, which does not seek relief under California's Anti-SLAPP statute, to supersede their motion filed on December 6, 2010.*fn4 In any event, that question need not be answered in this order. All of these motions (Dkt. Nos. 13, 15, 16, 18, 19), collectively referred to herein as "the Pending Motions," are presently set for a hearing before the undersigned to take place on January 13, 2011.

Pursuant to this court's Local Rules, plaintiffs were obligated to file and serve written oppositions or statements of non-opposition to the Pending Motions at least fourteen days prior to the hearing date, or December 30, 2010. See E. Dist. Local Rule 230(c).*fn5 The court's docket reveals that plaintiffs, who are proceeding without counsel, failed to file written oppositions or statements of non-opposition with respect to the Pending Motions.

Eastern District Local Rule 110 provides that "[f]ailure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court." Moreover, Eastern District Local Rule 183(a) provides, in part:

Any individual representing himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable law. All obligations placed on "counsel" by these Rules apply to individuals appearing in propria persona. Failure to comply therewith may be ground for dismissal . . . or any other sanction appropriate under these Rules.

See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) ("Pro se litigants must follow the same rules of procedure that govern other litigants."). Case law is in accord that a district court may impose sanctions, including involuntary dismissal of a plaintiff's case pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or fails to comply with the court's orders, the Federal Rules of Civil Procedure, or the court's local rules.*fn6

See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court "may act sua sponte to dismiss a suit for failure to prosecute"); Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss an action pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff's failure to prosecute or comply with the rules of civil procedure or the court's orders); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) ("Failure to follow a district court's local rules is a proper ground for dismissal."); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) ("Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with any order of the court."); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per curiam) (stating that district courts have inherent power to control their dockets and may impose sanctions including dismissal).

In light of the foregoing, IT IS HEREBY ORDERED that: 1. The hearing on the Pending Motions (Dkt. Nos. 13, 15, 16, 18, 19), which is presently set for January 13, 2011, is continued until February 24, 2011.

2. Plaintiffs shall file written oppositions to the Pending Motions, or statements of non-opposition to the granting of the Pending Motions, on or before January 20, 2011. Plaintiffs' failure to file written oppositions will be deemed to be statements of non-opposition to the Pending Motions and consent to the granting of those Pending Motions, and shall constitute an additional ground for the imposition of appropriate sanctions, including a recommendation that plaintiffs' case be involuntarily dismissed pursuant to Federal Rule of Civil Procedure 41(b).

3. The various moving defendants may file written replies to plaintiffs' oppositions, if any, on or before February 3, 2011.

IT IS SO ORDERED.


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