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Jose M. Flores v. Blue Mountain Homes

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


September 24, 2012

JOSE M. FLORES, PLAINTIFF,
v.
BLUE MOUNTAIN HOMES, LLC; BANK OF AMERICA; BAYVIEW LOAN SERVICES; CR TITLE SERVICES; POLYMATHIC PROPERTIES; QUALITY LOAN SERVICE CORP.; FANNIEMAE DBA FEDERAL HOME LOAN MORTGAGE CORP.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (MERS); AND DOES 1 THROUGH 10,
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). Presently noticed for hearing on October 10, 2012 are two motions to dismiss filed by various defendants. Dckt. Nos. 9, 10; see also Dckt. Nos. 12, 14.

On August 28, 2012, because plaintiff had not timely filed an opposition or a statement of non-opposition to either motion to dismiss, the undersigned continued the hearing on the motions to October 10, 2012; ordered plaintiff to show cause, in writing, no later than September 19, 2012, 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 19, 2012. Dckt. No. 14 at 2. The undersigned further stated that "[f]ailure of plaintiff to file an opposition to each motion will be deemed a statement of non-opposition to that motion, and may result in a recommendation that this action be dismissed for lack of prosecution and/or for failure to comply with court orders and this court's Local Rules. 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, nor has he filed an opposition to or statement of non-opposition to either motion to dismiss. 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); E.D. Cal. L.R. 110.

Accordingly, IT IS HEREBY ORDERED that: 1. The October 10, 2012 hearing on defendants' motions to dismiss, Dckt. Nos. 9 and 10, is vacated; and

2. The status (pretrial scheduling) conference currently set for hearing on December 19, 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' motions to dismiss, Dckt. Nos. 9 and 10, 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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