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Demetrio P. Pantoja v. Bac Home Servicing

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


April 30, 2012

DEMETRIO P. PANTOJA, PLAINTIFF,
v.
BAC HOME SERVICING, LP, ET AL., DEFENDANTS.

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 February 17, 2012, defendants Bank of America, N.A. as successor by merger to BAC Home Loans Servicing, L.P., and ReconTrust Company, N.A. ("defendants"), filed a motion to dismiss plaintiff's complaint. Dckt. No. 32. Defendants notices the motion for hearing on April 4, 2012. Dckt. No. 34.

On March 29, 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 May 9, 2012; ordered plaintiff to show cause, in writing, no later than April 25, 2012, why sanctions should not be imposed for failure to timely file an opposition or a statement of non-opposition to the pending motion; and directed plaintiff to file an opposition to the motion, or a statement of non-opposition thereto, no later than April 25, 2012. Dckt. No. 35 at 2. 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 the motion . . . be granted." 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 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 defendants' motion to dismiss be denied as moot. See Fed. R. Civ. P. 41(b); L.R. 110.

Accordingly, IT IS HEREBY ORDERED that:

1. The May 9, 2012 hearing on defendants' motion to dismiss is vacated; and

2. The status (pretrial scheduling) conference currently set for hearing on June 13, 2012, is vacated.*fn1

IT IS FURTHER 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' motion to dismiss, Dckt. No. 32, 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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