Domantay v. Ndex West, LLC

Full title: MARIBEL DOMANTAY, Plaintiff, v. NDEX WEST, LLC, et al., Defendants.

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: Jun 24, 2015

2:15-cv-0788-MCE-KJN PS (E.D. Cal. Jun. 24, 2015)

Opinion

MARIBEL DOMANTAY, Plaintiff, v. NDEX WEST, LLC, et al., Defendants. No. 2:15-cv-0788-MCE-KJN PS United States District Court, E.D. California. June 24, 2015

          ORDER

          KENDALL J. NEWMAN, Magistrate Judge.

         On June 9, 2015, the undersigned issued findings and recommendations recommending that this case be dismissed pursuant to Federal Rule of Civil Procedure 41(b) based on plaintiff's multiple failures to timely file an opposition or statement of non-opposition to defendant World Savings Bank's ("defendant") pending motion to dismiss. (ECF No. 11.) On June 11, 2015, one week after the extended filing deadline set by the court's May 11, 2015 order, plaintiff filed an opposition to defendant's motion to dismiss. (ECF No. 12.) It appears that plaintiff filed her untimely opposition under the erroneous belief that she was required to file by June 11, 2015, the deadline the court set in its June 9, 2015 order for defendant to file its reply brief.

         In light of plaintiff's pro se status and the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits, see Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986) ("Cases should be decided upon their merits whenever reasonably possible."), the court will vacate the June 9, 2015 findings and recommendations recommending dismissal of this action with prejudice in order to address defendant's motion to dismiss on the merits.¹ Because defendant has filed a reply to plaintiff's opposition addressing plaintiff's opposition on the merits, (ECF No. 13), no further briefing regarding defendant's motion to dismiss will be permitted. Furthermore, after reviewing the parties' briefing, the court concludes that oral argument would not be of material assistance in resolving defendant's motion to dismiss. Accordingly, this motion is submitted on the record and briefing pursuant to Local Rule 230(g). If the court subsequently determines that oral argument is necessary, it will set a hearing by separate order.

1 Plaintiff is admonished that the court will not act so leniently with respect to any future failures on plaintiff's part to comply with any deadlines or other orders issued by the court. Any future failures to comply with such orders will result in a recommendation that plaintiff's entire action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b).

         Based on the foregoing, IT IS HEREBY ORDERED that:

         1. The June 9, 2015 findings and recommendations (ECF No. 11) recommending dismissal of this action with prejudice pursuant to Federal Rule of Civil Procedure 41(b) are VACATED.

         2. Defendant's motion to dismiss (ECF No. 7) is submitted on the record and briefing pursuant to Local Rule 230(g). If the court subsequently determines that oral argument is necessary, it will set a hearing by separate order. No further briefing with regard to this motion will be permitted unless directed by the court via subsequent order.

         IT IS SO ORDERED.