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Ivan Rotaru, Raisa Rotaru v. Pnc Mortgage; Cal-Western Reconveyance

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


February 7, 2011

IVAN ROTARU, RAISA ROTARU, PLAINTIFFS,
v.
PNC MORTGAGE; CAL-WESTERN RECONVEYANCE;
NATIONAL CITY MORTGAGE, 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 November 10, 2010, defendant PNC Bank, National Association, as successor by merger to National City Bank, previously dba National City Mortgage (named as "PNC Mortgage" and "National City Mortgage") ("PNC") removed this action from Sacramento County Superior Court pursuant to 28 U.S.C. §§ 1331, 1441, and 1446, on the ground that plaintiffs' complaint alleges federal claims. Dckt. No. 1. Then, on November 17, 2010, PNC moved to dismiss and to strike the complaint and noticed the motions to be heard on December 29, 2010. Dckt. Nos. 12, 13.

On December 22, 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 February 16, 2011; ordered plaintiffs to show cause, in writing, no later than February 2, 2011, why sanctions should not be imposed for 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 February 2, 2011. Dckt. No. 16. 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 the motions, or a statement of non-opposition to the motions. In light of plaintiffs' failures, the undersigned will recommend that this action be dismissed for failure to prosecute the action and to comply with court orders and Local Rules and that PNC'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 February 16, 2011 on PNC's motions to dismiss and to strike, Dckt. Nos. 12 and 13, is vacated; and

2. The status (pretrial scheduling) conference currently set for hearing on March 30, 2011, 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 and to comply with court orders and Local Rules;

2. PNC's motions to dismiss and to strike, Dckt. Nos. 12 and 13, 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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