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Evaristo v. Wells Fargo Bank N.A.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION
Nov 30, 2011
Case No: C 11-3271 SBA (N.D. Cal. Nov. 30, 2011)

Opinion

Case No: C 11-3271 SBA Dkt. 6 Dkt. 7

11-30-2011

EDUARDO M. EVARISTO, et al., Plaintiffs, v. WELLS FARGO BANK N.A., et al., Defendants.


ORDER DIRECTING PLAINTIFFS TO RESPOND TO DEFENDANTS'

MOTION TO DISMISS AND MOTION TO STRIKE

Plaintiffs Eduardo and Jocelyn Evaristo, acting pro se, filed the instant mortgage fraud action in San Mateo County Superior Court on May 23, 2011. On July 1, 2011, Defendant Wachovia Mortgage ("Wachovia"), which identifies itself as "a division of Wells Fargo Bank, N.A., Successor by merger to Wells Fargo Bank Southwest, N.A., f/k/a Wachovia Mortgage, FSB and World Savings Bank, FSB," removed the action on the basis of diversity jurisdiction. The action was assigned to Magistrate Judge Beeler.

On July 8, 2011, Wachovia filed a motion to dismiss and a motion to strike portions of the Complaint. Dkt. 6, 7. On July 26, 2011, the action was reassigned to the undersigned. Dkt. 13. On July 28, 2011, Wachovia renoticed its motions on this Court's calendar for December 6, 2011. Dkt. 16, 17. On September 9, 2011, Defendant Regional Trustee Service Corporation ("Regional") filed a joinder in the motion to dismiss. Dkt. 18.

Under Civil Local Rule 7-3(a), an opposition to a motion must be filed within fourteen days of the date the motion was filed, and the reply is due seven days thereafter. As such, Plaintiff's responses to the motion should have been filed by no later than August 9, 2011, which is two weeks after Wachovia filed its motions. To date, however, Plaintiffs have not filed any response to Defendants' motions.

This Court's Standing Orders warn that the failure to file a response to a motion may be deemed to be a consent to the granting of the unopposed motion. Dkt. 17 at 5. As such, it is well within the discretion of the Court to grant Defendants' motions as unopposed, and dismiss the action. See Fed. R. Civ. P. 41(b); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). Nevertheless, mindful of its obligation to first consider to less drastic alternatives, the Court will afford Plaintiffs one further opportunity to respond to the pending motions. Accordingly,

IT IS HEREBY ORDERED THAT:

1. Plaintiffs shall have until December 28, 2011 to file and serve their responses (i.e., either an opposition or a statement of non-opposition) to Defendants' motions to dismiss and to strike. Plaintiffs' responses shall comply in all respects with the Federal Rules of Civil Procedure and the Court's Civil Local Rules including, without limitation, Civil Local Rules 7-3 through 7-5. PLAINTIFFS ARE WARNED THAT THE FAILURE TO FILE A RESPONSE TO THE PENDING MOTIONS BY THIS DEADLINE AND/OR TO COMPLY WITH THIS ORDER OR ANY OTHER APPLICABLE PROCEDURAL RULES WILL RESULT IN THE GRANTING OF THE PENDING MOTION AND THE DISMISSAL OF THIS ACTION. In the event Plaintiffs timely file their responses, Defendants may file a reply seven days after the deadline for Plaintiffs' responses.

2. The motion hearing and Case Management Conference scheduled for December 6, 2011 is CONTINUED to January 31, 2012 at 1:00 p.m. The Court, in its discretion, may resolve the motion without oral argument, prior to the hearing. Fed. R. Civ. P. 78(b); Civ. L.R. 7-1(b). The parties are advised to check the Court's website to determine whether a court appearance is required.

IT IS SO ORDERED.

SAUNDRA BROWN ARMSTRONG

United States District Judge

FOR THE

NORTHERN DISTRICT OF CALIFORNIA

EDUARDO M EVARISTO et al, Plaintiff,

v.

WELLS FARGO BANK et al, Defendant.

Case Number: CV11-03271 SBA

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California.

That on November 30, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Eduardo M. Evaristo

7 Sharon Court

Daly City, CA 94014

Jocelyn F. Evaristo

7 Sharon Court

Daly City, CA 94104

Richard W. Wieking, Clerk

By: LISA R CLARK, Deputy Clerk


Summaries of

Evaristo v. Wells Fargo Bank N.A.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION
Nov 30, 2011
Case No: C 11-3271 SBA (N.D. Cal. Nov. 30, 2011)
Case details for

Evaristo v. Wells Fargo Bank N.A.

Case Details

Full title:EDUARDO M. EVARISTO, et al., Plaintiffs, v. WELLS FARGO BANK N.A., et al.…

Court:UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

Date published: Nov 30, 2011

Citations

Case No: C 11-3271 SBA (N.D. Cal. Nov. 30, 2011)