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Maria Pena v. Wells Fargo Bank Na

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


September 23, 2011

MARIA PENA, PLAINTIFF,
v.
WELLS FARGO BANK NA, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

This case, in which plaintiff is 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 July 8, 2011, defendants filed a motion to dismiss and motion to strike. The motions were noticed to be heard on August 25, 2011 and continued by minute order for hearing on September 7, 2011.

On August 26, 2011, because plaintiff had not filed either an opposition or a statement of non-opposition to the motions, the undersigned continued the hearing on the motions to October 12, 2011; ordered plaintiff to show cause, in writing, no later than September 21, 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 plaintiff to file an opposition to the motions, or a statement of non-opposition thereto, no later than September 21, 2011. The undersigned further stated that "[f]ailure of plaintiff to file an opposition will be deemed a statement of non-opposition to the pending motion, 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 plaintiff has 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 plaintiff's failures, the undersigned will recommend that this action be dismissed for failure to prosecute the action and for failure to comply with court orders and Local Rules, and that defendants' motions to dismiss and to strike be denied as moot. SeeFed. R. Civ. P. 41(b); L.R. 110.

Accordingly, IT IS HEREBY ORDERED that:

1. The hearing date of October 12, 2011, on defendants' motions to dismiss and to strike, is vacated; and

IT IS HEREBY RECOMMENDED that:

1. This action be dismissed pursuant to Federal Rule of Civil Procedure 41(b), based on plaintiff's failure to prosecute the action and to comply with court orders and Local Rules;

2. Defendants' motions to dismiss and to strike (dkt. nos. 6, 7) be denied as moot; and

3. The Clerk of Court 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. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20110923

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