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Robert K. Cyphers, Jr v. Wells Fargo Bank
August 5, 2011
ROBERT K. CYPHERS, JR.,
WELLS FARGO BANK, N.A., NATIONAL CITY BANK N.A, FINANCIAL TITLE COMPANY, DOES 1-100, DEFENDANTS.
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Plaintiff Robert K. Cyphers Jr. ("Plaintiff") seeks redress from Defendants Wells Fargo Bank, National City Bank, and Financial Title Company ("Defendants") for alleged violations of California Civil Code Sections 2923.5 and 2924 and 15 U.S.C. Sections 1601-1667, the Truth in Lending Act ("TILA"), among other state causes of action.
Presently before the Court is a motion by Defendant Wells Fargo to dismiss Plaintiff's Complaint for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF No. 5).*fn1
Eastern District of California Local Rule 230(c) provides that an opposition or statement of non-opposition to an opponent's motion must be filed within fourteen days preceding the noticed hearing date. The rule further provides that "[n]o party will be entitled to be heard in opposition to a motion at oral arguments if written opposition to the motion has not been timely filed by that party." Id. Failure to appear or otherwise respond may be deemed withdrawal of opposition to the motion and the Court may impose sanctions accordingly.
The original hearing for this motion was set for July 14, 2011. Plaintiff did not file a timely opposition or a statement of non-opposition pursuant to Local Rule 230(c). Nonetheless, the motion was vacated on the Court's own motion, and the hearing was continued to August 11, 2011. As of July 28, 2011, fourteen days prior to the rescheduled hearing date, Plaintiff has again failed to file an opposition to Defendant's Motion to Dismiss.
In light of the fact that no opposition was filed by Plaintiff, Defendant's Motion to Dismiss*fn2 (Docket No. 5) is GRANTED with leave to amend. As a result of the failure to respond to the motion, within ten (10) days from the date this order is electronically filed, Plaintiff's counsel shall either (1) personally pay sanctions in the amount of $250.00 to the Clerk of the Court*fn3 , or (2) show good cause for the failure to comply with Local Rule 230(c).
Plaintiff may file an amended complaint not later than twenty (20) days after the date this Memorandum and Order is filed electronically. If no amended complaint is filed within said twenty (20)-day period, without further notice, Plaintiff's claims will be dismissed without leave to amend.
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