UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
April 28, 2011
MARGARITA M. SANCHEZ,
WACHOVIA MORTGAGE CORPORATION, WELLS FARGO BANK, N.A., NDEX WEST, LLC, AND DOES 1-100, INCLUSIVE,
The opinion of the court was delivered by: Lucy H. Koh United States District Judge
ORDER GRANTING PLAINTIFF LEAVE TO FILE OPPOSITION TO
DEFENDANT'S MOTION TO DISMISS
United States District Court For the Northern District of California
alleging claims of negligence, negligence per se, and fraud against defendants. See Compl. (Dkt. No. 1, Ex. A). In the Complaint, Plaintiff sought a Temporary Restraining Order (TRO) to enjoin a 20 foreclosure sale set for February 22, 2011 on her property at 4895 Peninsula Point Drive, Seaside, 21 CA 93955. See Compl. at 5. Plaintiff alleged that defendants have refused to modify her loan in 22 bad faith. 23
March 22, 2011, Defendant filed a Motion to Dismiss all the causes of action in the Complaint, and 26 a Motion to Strike. The hearing on these Motions was set for April 28, 2011. Therefore, Plaintiff's 27
Opposition, or statement of nonopposition, in violation of Civil Local Rule 7-3.
On February 22, 2011, Plaintiff filed a complaint in the Superior Court of Monterey County
On March 1, 2011, defendant Wachovia Mortgage (a division of Wells Fargo Bank, N.A.)
(Defendant) removed the case to this Court on the basis of diversity jurisdiction. See Removal. On 25
Opposition to both Motions was due on April 7, 2011. See Civ. L.R. 7-3. Plaintiff filed no
On April 14, 2011, this Court issued an order denying Plaintiff's ex parte Application for Temporary Restraining Order (TRO) seeking to enjoin a foreclosure sale set for April 15, 2011. 3
See Dkt. No. 15. The Court found that Plaintiff had not articulated a likelihood of success on the 4 merits of her claim, and that Plaintiff's delay in bringing the application weighed against the 5 fairness of granting her request. The Court also ordered Plaintiff to show cause why her case 6 should not be dismissed for failure to prosecute in light of her failure to oppose Defendant's
On April 18, 2011, Plaintiff filed a "renewed" ex parte Application
for a TRO enjoining the
sale. Because the renewed TRO Application raised no new, persuasive
legal or factual bases 10 indicating a likelihood of success on the
merits, the Court denied the Application the day it was
falsified the proof of service of the removal papers and that she
did not receive notice of the 14 removal of the case until March 21,
2011. Plaintiff's attorney states that she is "attaching . . . 15
documents" evidencing proof of Defendant's "fraud" on the Court, but
nothing was attached to
Plaintiffs' filing. Plaintiff's attorney also stated that Defendant
had agreed to withdraw the Motion 17 to Dismiss, and that that was the
reason she did not file an opposition or statement of 18 nonopposition
to that Motion. Finally, Plaintiff's attorney stated that she had a
serious medical 19 problem in mid-March. 20
alleged agreement to withdraw the Motion to Dismiss. Based on Defendant's submission, the Court finds that Plaintiff's attorney's allegations are untrue. Should Plaintiff's attorney submit 23 further bad faith allegations to the Court, she is warned that the Court may order her to show cause 24 why sanctions should not be imposed.
Because Plaintiff's attorney claims that she suffered a serious medical problem in March,
26 the Court hereby grants Plaintiff leave to file an Opposition to Defendant's Motion to Dismiss and Motion to Strike within 14 days of the date of this Order. If Plaintiff fails to file an Opposition, 28 this case will be dismissed with prejudice.
Case No.: 11-CV-00959-LHK
ORDER GRANTING PLAINTIFF LEAVE TO OPPOSE MOTIONS
Motions to Dismiss and Strike filed on March 22, 2011.
Plaintiff's attorney responded to the Order to Show Cause (OSC), claiming that Defendant
Defendant responded to the allegations regarding falsification of proofs of service and the
IT IS SO ORDERED.
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