Opinion
1:22-cv-00904-ADA-SAB
04-10-2023
BERKLEY ASSURANCE COMPANY, et al. Plaintiffs, v. OLAM AMERICAS, INC., et al., Defendants.
ORDER CONTINUING HEARING ON MOTION TO DISMISS UNTIL MAY 10, 2023
(ECF NOS. 40, 42, 50)
Plaintiff Berkley Assurance Company, individually and on behalf of Arte Sano, LLC, filed this action July 20, 2022, against Defendants Olam Americas, Inc. (“Olam”), and Smirk's LTD. (ECF No. 1.) On October 18, 2022, Defendant Olam filed a motion to dismiss, and on December 6, 2022, filed a motion for joinder or more definite statement. (ECF No. 22.) On January 11, 2023, the Court held a hearing on the motions. (ECF No. 30.) No appearances were made on behalf of movant Defendant Olam. On January 11, 2023, the Court issued findings and recommendations recommending that Defendant Olam's motions be deemed withdrawn pursuant to Local Rule 230(i). (ECF No. 33.)
After the findings and recommendations issued, on February 8, 2023, Defendant Olam filed the motion to dismiss again, as applied to the first amended complaint. (ECF No. 40.) On February 9, 2023, the District Judge referred the newly filed motion to dismiss to the assigned Magistrate Jude for the preparation of findings and recommendations, and/or other appropriate action. (ECF No. 41.) On February 14, 2023, the Court set the hearing on the motion to dismiss for March 29, 2023, before the assigned Magistrate Judge. (ECF No. 42.) On February 22, 2023, Plaintiff Berkley filed an opposition to the motion to dismiss, that in part, argues the motion to dismiss should be denied because of the failure to appear and recommendation to withdraw the initial motion to dismiss. (ECF No. 43.) On March 6, 2023, Defendant Olam filed a reply that argued, in part, the motion to dismiss is proper because the nonappearance should be excused, because the substantive components were not adjudicated, and because the District Judge referred the renewed motion to dismiss. (ECF No. 49.)
In light of the fact the findings and recommendations issued on January 11, 2023, are still pending, and given the parties' arguments proffered in briefing, on March 24, 2023, the Court continued the hearing on the motion to dismiss until April 12, 2023. (ECF No. 50.) Upon review of the docket, the Court finds it prudent to again continue the hearing on the motion to dismiss, to allow additional time for the District Judge to consider the still pending findings and recomm endati ons.
The Court further notes that not all parties have returned consent or declination of consent forms in this action. To consent or decline to magistrate judge jurisdiction, a party may sign and file the consent form available on the Court's website, at: hhttp://www.caed.uscourts.gov/caednew/index.cfm/forms/civil/. Parties may consent, decline or withhold consent without any adverse consequences, and the assigned Magistrate Judge will not be informed of the individual party's holding or withholding of consent. The Court further notes that the District Judges in the Eastern District are among the busiest in the nation. (See ECF No. 40 entered in Case No. 1:20-cv-01069-ADA-SAB (“The parties are further advised that due to the judicial resource emergency and COVID pandemic, there are more than 130 motions currently under submission in Judge de Alba's recently re-assigned caseload. The Court understands the impact that such a backlog has on the parties and although the Court will continue working diligently to resolve all pending motions, it may still be months before the parties' pending motion is resolved. As such, in light of having the heaviest district court caseload in the nation, limited Court resources, and the need to prioritize criminal and older civil matters over more recently filed actions, this Court strongly encourages the parties to consent to conduct all further proceedings before a U.S. Magistrate Judge.”).)
Judicial notice may be taken “of court filings and other matters of public record.” Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006).
Accordingly, IT IS HEREBY ORDERED that the hearing on Defendant's motion to dismiss currently set for April 12, 2023, in Courtroom 9 (ECF Nos. 40, 42, 50), is CONTINUED to May 10, 2023, in Courtroom 9, at 10:00 a.m.
IT IS SO ORDERED.