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De Chellis v. Ocwen Loan Servicing LLC

United States District Court, E.D. California

March 31, 2014

DIANE De CHELLIS, Plaintiff,
v.
OCWEN LOAN SERVICING LLC, et al., Defendants.

ORDER

KIMBERLY J. MUELLER, Judge.

Plaintiff Diane De Chellis ("plaintiff"), proceeding pro se, brings the instant action, alleging several violations of state and federal law due to the foreclosure of a property located in Siskiyou County, California. The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. ยง 636(b)(1)(B) and Local Rule 302.

On September 11, 2013, the Magistrate Judge filed findings and recommendations, which were served on the parties and contained notice that any objections thereto were to be filed within fourteen days. ECF. No. 14. No objections to the findings and recommendations have been filed.

The court presumes that any findings of fact are correct. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979), and reviews conclusions of law de novo, see Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having carefully reviewed the file, the court finds the findings and recommendations to be largely supported by the record and by the proper analysis, except for the recommendation of dismissal without leave to amend.

The magistrate judge correctly states the standard governing a motion to dismiss. However, the court does not reach the magistrate judge's conclusion that, given leave to amend, plaintiff "could not possibly cure the deficienc[ies]" in her pleadings. Telesauraus V.P.C., L.L.C. v. Power, 623 F.3d 998, 1003 (9th Cir. 2010). The magistrate judge reasoned that "given the complete lack of factual allegations set forth in the complaint, and plaintiff's failure to oppose defendant's motion to dismiss, ... granting leave to amend would be futile." Findings and Recommendations at 4. However, because the magistrate judge identifies omission of factual allegations as the complaint's fatal deficiency, leave to amend would permit plaintiff to rectify her pleadings, if she can. As such, the court declines to adopt the magistrate judge's recommendation to dismiss the claim and close the case. Rather, in light of plaintiff's pro se status, leave to amend should be granted so that plaintiff may be given the opportunity to address the failings in her complaint. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se plaintiff's to less stringent standard).

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed September 11, 2013, are adopted except as to dismissing the claim and closing the case;
2. Plaintiff is directed to file an amended complaint within thirty (30) days of the date of this order; and
3. The case is referred back to the magistrate judge.

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