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Monte P. Dauer; and Marci D. Dauer v. National City Bank; and Pnc Bank

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


November 8, 2012

MONTE P. DAUER; AND MARCI D. DAUER,
PLAINTIFFS,
v.
NATIONAL CITY BANK; AND PNC BANK, NATIONAL ASSOCIATION, DEFENDANTS.

The opinion of the court was delivered by: Lucy H. Koh United States District Judge

For the Northern District of California United States District Court

ORDER DECLINING TO DISMISS PLAINTIFFS' CASE

On October 15, 2012, this Court issued an Order to Show Cause requiring Plaintiffs Monte P. Dauer ("Mr. Dauer") and Marci D. Dauer (collectively, "Plaintiffs") to show cause, by 19 November 2, 2012, why their case should not be dismissed. ECF No. 8. The Court's Order was 20 based on Plaintiffs' failure to file an opposition or statement of nonopposition to the motion to 21 dismiss filed by Defendant PNC Bank, N.A. ("PNC") on August 8, 2012. See id. Pursuant to Civil 22 Local Rule 7-3(a), Plaintiffs' opposition to the motion to dismiss was due on August 22, 2012. As 23 of October 15, 2012, Plaintiffs had not filed an opposition or statement of nonopposition to PNC's 24 motion to dismiss. The Court's Order did not authorize Plaintiffs to file an untimely opposition to 25 PNC's motion to dismiss. See id.

On November 2, 2012, Plaintiffs filed their response to the Order to Show Cause. See ECF No. 9. Plaintiffs' response explains that Plaintiffs are proceeding pro se, and that Plaintiffs 28 mistakenly believed that the deadline to file their opposition was 15 days before the case management conference and motion hearing set for November 8, 2012, i.e. October 24, 2012. See 2 id. The Plaintiffs "beg the [C]court" to allow the case to proceed. Id. 3

Mr. Dauer appeared pro se at the hearing on the Court's Order to Show Cause on November 8, 2012, at 1:30 p.m. Joshua Bryan appeared on behalf of PNC.

The Court declines to dismiss Plaintiffs' case at this time in light of the facts that: (1) Plaintiffs filed a timely response to the Court's Order to Show Cause; (2) Mr. Dauer appeared at 7 the hearing on the Order to Show Cause; and (3) Plaintiffs are proceeding pro se. 8 at the San Jose Courthouse. The telephone number for FLASH is (408) 297-1480. 10

opposition to PNC's motion to dismiss by November 19, 2012. Accordingly, the Court set the

deadline for Plaintiffs to file their opposition on Monday, November 19, 2012. In light of the 13

The Court referred Plaintiffs to the Federal Legal Assistance Self-Help Center ("FLASH")

At the November 8, 2012 hearing, Mr. Dauer stated that Plaintiffs could file their

United States District Court For the Northern District of California

Thanksgiving holiday, the Court set the deadline for PNC to file its reply on Thursday, November 14 29, 2012. The Court set the hearing on PNC's motion to dismiss and a case management 15 conference on Thursday, January 10, 2013, at 1:30 p.m., in courtroom 8. 16 17 proceed in forma pauperis. See ECF No. 2. Mr. Dauer stated that he had mistakenly listed his 18 annual income as his monthly income, thereby overstating his income by a factor of twelve. The 19

Dauer stated that he could file an amended motion by November 9, 2012. Accordingly, the Court 21 set the deadline for Plaintiffs to file their amended motion on Friday, November 9, 2012. 22

At the November 8, 2012 hearing, the Court also addressed Plaintiffs' motion for leave to Court ordered Mr. Dauer to file an amended motion for leave to proceed in forma pauperis. Mr. 20

IT IS SO ORDERED. 23

20121108

© 1992-2012 VersusLaw Inc.



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