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Dennly R. Becker; the Becker Trust Dated March 25, 1991 v. Wells Fargo Bank

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


February 2, 2011

DENNLY R. BECKER; THE BECKER TRUST DATED MARCH 25, 1991, PLAINTIFFS,
v.
WELLS FARGO BANK, N.A., INC.; WACHOVIA MORTGAGE CORPORATION; DOES 1-20,
DEFENDANTS.

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

ORDER

Currently before the court is plaintiff Dennly Becker's "Ex Parte Application For Order Continuing Hearings On Defendants' Motion To Dismiss Complaint And Motion To Strike Portions Of Complaint And On Plaintiff's Ex Parte Application Re Preliminary Injunction Order And For Approval of Lis Pendens" ( "Plaintiff's Request").*fn1 (Pltf.'s Request, Dkt. No. 38.)

On January 13, 2011, defendants Wells Fargo Bank, N.A., and Wachovia Mortgage Corporation filed a motion to dismiss and a motion to strike plaintiff's First Amended Complaint ("Defendants' Motions"). (Defendants' Motions, Dkt. Nos. 26-27.) The motions are currently set to be heard on February 17, 2011. (Id.)*fn2 In a nutshell, Plaintiff, who is pro se and proceeding without counsel, seeks to continue that hearing from February 17, 2011, to March 31, 2011, so that he has more time to prepare oppositions to Defendants' Motions.

Plaintiff filed his Request on January 28, 2011, six days before his February 3, 2011 deadline to file oppositions to the Defendants' Motions.*fn3 Plaintiff's Request purports to seek a time extension under Eastern District Local Rule 144 (Pltf.'s Request at 1), but because plaintiff asks for the February 17, 2011 hearing to be rescheduled entirely, the undersigned construes Plaintiff's Request as seeking a continuance under Local Rule 230(f).*fn4

A review of the court's docket confirms that the Defendants' Motions were filed and served upon plaintiff in accordance with the Eastern District Local Rule 230(b), and that plaintiff received proper notice of the February 17, 2011 hearing date. Defendants filed and served the motions on January 13, 2011, and set them to be heard on February 17, 2011. (Defendants' Motions, Dkt. Nos. 26 at 39 and 27 at 13 (appending proofs of service).) Thus, plaintiff had more than the requisite 28 days' notice of the February 17, 2011 hearing-and had notice of the commensurate need to begin preparing his oppositions. Local Rule 230(b).*fn5

Plaintiff explains that defendants' two motions include "more than 118 citations," and that "to file a meaningful opposition to the defendants' motions . . . the plaintiff believes he must find, review, and understand the citations." (Pltf.'s Request, Dkt. No. 38 at 2.) Plaintiff notes that he has become "painfully aware" that he will not have enough time to prepare a timely opposition if the February 17, 2011 hearing date is kept on calendar. (Pltf.'s Request at 2.) To give himself time to "absorb" the citations in defendants' motions, plaintiff requests that the hearing on defendants' motions to dismiss and strike currently set for February 17, 2011, be continued to March 31, 2011, giving plaintiff "about 50 days . . . to find, read, and understand the 1030 pages cited by defendants, do his own research, and write his opposition to defendant's motions." (Pltf.'s Request, Dkt. No. 38 at 2-3.)

Plaintiff also indicates that he had met and conferred with defendants' counsel regarding the continuance he now requests. (Pltf.'s Request at 3.) According to plaintiff, defendants' counsel initially agreed to stipulate to a 14-day continuance, and subsequently agreed to a 28-day continuance. (Id.) However, plaintiff maintained that he required "about 50 days" for a "well reasoned opposition," so no stipulation was ultimately reached. (Id.)

The undersigned appreciates that parties representing themselves (also known as "pro se" parties or parties "in propria persona") face difficulties, especially in researching, drafting, and filing oppositions to multiple motions containing numerous legal arguments.

Nonetheless, the Eastern District Local Rules are clear: "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." Local Rule 183(a). Given this Local Rule, the undersigned is not inclined to continue a hearing for 50 days, especially where the motions to be heard were properly noticed in accordance with Local Rule 230(b) as described above.

However, the undersigned appreciates the challenges plaintiff faces and plaintiff's attempt to abide by the court's rules and seek a continuance. Taking plaintiff at his word that defense counsel was willing to stipulate to a 14-day continuance (and even, it seems, a 28-day continuance) (Pltf.'s Request at 3), the undersigned will continue the hearing currently set for February 17, 2011, to March 3, 2011, a continuance of 14 days.

In light of the foregoing, IT IS HEREBY ORDERED that:

1. The hearing on defendants' motion to dismiss and motion to strike (Defendants' Motions, Dkt. Nos. 26-27) and defendants' request for judicial notice (Dkt. No. 28) currently set for February 17, 2011, at 10:00 a.m., is hereby vacated.

2. The hearing on defendants' motion to dismiss and motion to strike (Defendants' Motions, Dkt. Nos. 26-27) and request for judicial notice (Dkt. No. 28) is hereby reset for March 3, 2011, at 10:00 a.m., in Courtroom 25. Plaintiff's oppositions must be filed by February 17, 2011. Defendants' replies, if any, must be filed by February 24, 2011.

3. The hearing on plaintiff's Ex Parte Application Re Preliminary Injunction Order And For Approval of Lis Pendens (Dkt. No. 24) currently set for February 17, 2011, is hereby vacated.

4. The hearing on plaintiff's Ex Parte Application Re Preliminary Injunction Order And For Approval of Lis Pendens (Dkt. No. 24) is hereby reset for March 3, 2011, at 10:00 a.m., in Courtroom 25. Defendants' oppositions to this motion are already on file. (Dkt. No. 31.)

IT IS SO ORDERED.


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