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Michael R. Alvarez v. Pnc Bank

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


March 1, 2012

MICHAEL R. ALVAREZ, PLAINTIFF,
v.
PNC BANK, N.A., DEFENDANT.

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 E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1). On January 17, 2012, defendant filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). The motion was noticed to be heard on February 22, 2012. (Dkt. No. 6.)

On February 10, 2012, because plaintiff had not filed either an opposition or a statement of non-opposition to the motion, the undersigned continued the hearing on the motion to March 14, 2012 and directed plaintiff to file an opposition to the motion, or a statement of non-opposition thereto, no later than February 29, 2012. (Dkt. No. 7.) Plaintiff was advised that failure to file an opposition would be deemed a statement of non-opposition to the pending motion and would result in a recommendation that this action be dismissed.

Although the deadlines have now passed, the court docket reflects that plaintiff has not filed an opposition to the motion or a statement of non-opposition to the motion. 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 defendant's motion to dismiss be denied as moot. SeeFed. R. Civ. P. 41(b); E.D. Cal. L.R. 110.

Accordingly, IT IS HEREBY ORDERED that:

1. The hearing date of March 14, 2012 on defendant's motion to dismiss 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. Defendant's motion to dismiss (dkt. no. 6) 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 (14) 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." Any reply to the objections shall be served and filed within seven (7) days after service of the objections. 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).

20120301

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