Opinion
Case No.: 5:11-CV-04780-LHK
01-11-2012
ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE
Plaintiff Daniel Moreno filed a complaint in state court on August 26, 2011, which Defendant Wachovia Mortgage then removed to federal court on September 26, 2011. See ECF No. 1. October 3, 2011, Wachovia Mortgage filed a Motion to Dismiss all four claims alleged in the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. See ECF No. 6. Pursuant to Civil Local Rule 7-3(a), Plaintiffs' opposition to the motion to dismiss was due on October 17, 2011. Plaintiffs have not filed an opposition or statement of nonopposition to Defendant's motion to dismiss. Moreover, based on the docket, it is not clear that Defendants Novastar Home Mortgage, Inc., Quality Loan Services, Cal-Western Reconveyance Corp., MERS, and Wachovia Mortgage have been served in this case.
The hearing on the motion to dismiss and the case management conference set for January 26, 2012 are VACATED. The Court hereby ORDERS Plaintiff to show cause why this case should not be dismissed for failure to prosecute. This Order does not authorize Plaintiff to file an untimely opposition to Defendant's motion to dismiss. Plaintiff has until January 19, 2012 to file a response to this Order to Show Cause. A hearing on this Order to Show Cause is set for Thursday, January 26, 2012 at 1:30 P.M. In addition, by the hearing on the Order to Show Cause, Plaintiff must file proofs of service of the summons and complaint as to all Defendants in compliance with Federal Rule of Civil Procedure 4(m). Plaintiffs failure to respond to this Order and to appear at the January 26, 2012 hearing will result in dismissal with prejudice for failure to prosecute.
In the event that Plaintiff timely files a response to this Order, Defendant Wachovia Mortgage is on notice that the Court may at that time request supplemental briefing from both parties as to whether the remaining Defendants were fraudulently joined in the state court action as Wachovia Mortgage has alleged in its notice of removal. See ECF No. 1.
IT IS SO ORDERED.
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LUCY H. KOH
United States District Judge