Haskins, et al. v. Moynihan, et al., No. 2:2010cv01000 - Document 44 (D. Ariz. 2010)
Court Description: ORDER denying 40 Plaintiffs' Motion for TRO and Motion for Preliminary Injunction. IT IS FURTHER ORDERED granting 7 Motion to Dismiss Case and granting 9 Motion to Dismiss Case; Defendants Bear Stearns, John Vella, BAC Home Loans Servicing LP, Bank of America, Countrywide Homeloans, Inc., Mortgage Electronic Registration Systems, Inc., and Recontrust Company, N.A. shall be DISMISSED from this case without prejudice. IT IS FURTHER ORDERED granting 10 Defendants' Motion to Quash ; Plaintiffs shall have until August 28, 2010 to effect service of process on R. K. Arnold, Angelo Mazilo, Brian T. Moynihan, and James Taylor. Should Plaintiffs fail to provide proof of service by that date, the Clerk is directed to TERMINATE these Defendants without prejudice. IT IS FURTHER ORDERED granting 38 Defendants John Vella and Bear Stearns Residential Mortgage Coporation's Motion to Strike; the Clerk is directed to STRIKE 13 , 14 , 15 , 16 , 17 , 18 , 21 , 22 , 23 , 30 and 31 Plaintiffs' Judicial Notices and 42 Plaintiffs' Amended Complaint. IT IS FURTHER ORDERED denying 43 Plaintiff's Motion for Leave to Amend. See PDF document for details. Signed by Judge G Murray Snow on 7/6/10.(LSP)
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Haskins, et al. v. Moynihan, et al. 1 2 Doc. 44 WO NOT FOR PUBLICATION 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 13 14 15 16 Michael Edward Haskins and Barbara Ann) ) Haskins, ) ) Plaintiffs, ) ) vs. ) ) ) Brian T. Moynihan, et al., ) ) Defendants. ) ) No. CV-10-1000-PHX-GMS ORDER 17 The following motions and filings are currently pending before the Court: (1) two 18 Motions to Dismiss (Dkt. ## 7; 9) filed by Defendants Bear Stearns, John Vella, BAC Home 19 Loans Servicing LP, Bank of America, Countrywide Homeloans, Inc., Mortgage Electronic 20 Registration Systems, Inc., and Recontrust Company, N.A. (collectively “Moving 21 Defendants”); (2) the Motion to Quash Service of Summons (Dkt. # 10) filed by Defendants 22 R. K. Arnold, Angelo Mazilo, Brian T. Moynihan, and James Taylor (collectively “the 23 Individual Defendants”); (3) the Motion to Strike (Dkt. # 38) filed by Defendants John Vella 24 and Bear Sterns; (4) the Motion for Temporary Restraining Order and Preliminary Injunction 25 (Dkt. # 40) filed by Plaintiffs Michael and Barbara Haskins (“Plaintiffs”); (6) Plaintiffs’ June 26 29, 2010 Amended Complaint (Dkt. # 42), which was filed without leave of the Court; and 27 (7) Plaintiffs’ Motion for Leave to Amend (Dkt. # 43), which was filed several days after 28 Plaintiffs filed their Amended Complaint. As set forth below, the Court denies Plaintiffs’ Dockets.Justia.com 1 request for injunctive relief, grants each of Defendants’ Motions, and orders that Plaintiffs’ 2 Amended Compliant be stricken. Finally, the Court denies Plaintiffs’ Motion for Leave to 3 Amend. 4 5 DISCUSSION I. Plaintiffs’ Motion for Temporary Restraining Order & Preliminary Injunction 6 Federal Rule of Civil Procedure 65 authorizes the Court to issue a preliminary 7 injunction or Temporary Restraining Order (“TRO”) upon a proper showing. The standard 8 for issuing a TRO is the same as that for issuing a preliminary injunction. See Brown Jordan 9 Int’l, Inc. v. The Mind’s Eye Interiors, Inc., 236 F. Supp. 2d 1152, 1154 (D. Haw. 2007). To 10 prevail on a request for a preliminary injunction or TRO, a plaintiff must show either “(a) 11 probable success on the merits combined with the possibility of irreparable injury or (b) that 12 [it] has raised serious questions going to the merits, and that the balance of hardships tips 13 sharply in [its] favor.” Bernhardt v. L.A. County, 339 F.3d 920, 925 (9th Cir. 2003). The 14 Ninth Circuit has explained that “these two alternatives represent ‘extremes of a single 15 continuum,’ rather than two separate tests. Thus, the greater the relative hardship to the 16 moving party, the less probability of success must be shown.” Immigrant Assistant Project 17 of L.A. County Fed’n of Labor (AFL-CIO) v. INS, 306 F.3d 842, 873 (9th Cir. 2002) (citation 18 omitted). 19 Plaintiffs do not set forth facts sufficient for injunctive relief. While Plaintiffs contend 20 that they have been subjected to a wrongful foreclosure and various violations of state and 21 federal law, they fail to set forth specific facts suggesting a likelihood of success on the 22 merits. Several of Plaintiffs’ arguments appear to allege that Defendants have failed to 23 produce the original note securing Plaintiffs’ mortgage. Another Division of this Court, 24 however, has already rejected this “show me the note” argument. See Mansour v. Cal- 25 Western Reconveyance Corp., 618 F. Supp.2d 1178, 1181 (D. Ariz. 2009) (holding that 26 Arizona law “do[es] not require presentation of the original note before commencing 27 foreclosure proceedings”). Relying on Arizona Revised Statute § 47-3301, the Mansour court 28 held, “The UCC pertaining to negotiable instruments, as codified in Arizona at title 47, -2- 1 chapter 3, provides that ‘persons entitled to enforce an instrument [include] the holder of the 2 instrument, a nonholder in possession of the instrument who has the rights of a holder[,] or 3 a person not in possession of the instrument who is entitled to enforce the instrument 4 pursuant to § 47-3309.’” Id. (internal quotation marks omitted). The Court agrees with 5 Mansour’s analysis. Accordingly, to the extent that Plaintiffs contend that Defendants are 6 required to produce the original note to foreclose on their property, that claim fails. And 7 while Plaintiffs further contend that Defendants do not have authority to foreclose on his 8 property, they fail to explain the legal and factual basis for their belief that Defendants are 9 legally prohibited from exercising a right of foreclosure due to Plaintiffs’ alleged default. 10 Plaintiffs also contend that the note has been “securitized” by Defendants. Plaintiffs 11 fail, however, to explain why this is a legal basis that entitles them to relief. (See Dkt. # 10 12 at 2.) Plaintiffs do not point to any law indicating that securitization of a mortgage is 13 unlawful. See Colonial Savings, FA v. Gulino, 2010 WL 1996608, at *4 (D. Ariz. May 19, 14 2010) (rejecting a breach of contract claim premised on a lending institution’s decision to 15 securitize and cross-collateralize a borrower’s loan). And while Plaintiffs appear to allege 16 that Defendants committed fraud when they securitized the note without Plaintiffs’ consent, 17 Plaintiffs fail to set forth facts suggesting that Defendants ever indicated that they would not 18 bundle or sell the note in conjunction with the sale of mortgage-backed securities. 19 Plaintiffs further appear to allege that Defendants were not the true source of the 20 money loaned to Plaintiffs for their mortgage. Even assuming this allegation is true, it is 21 unclear how it provides Plaintiffs with a basis for relief. To the extent Plaintiffs are alleging 22 a claim for fraud or breach of contract, Plaintiffs fail to explain how they were harmed by 23 the fact that their loan was funded by someone other than the Defendants. See Echols v. 24 Beauty Built Homes, Inc., 132 Ariz. 498, 500, 647 P.2d 629, 631 (1982) (holding that an 25 injury is a necessary element of a claim for fraud); Clark v. Compania Ganadera De 26 Cananea, S.A., 95 Ariz. 90, 94, 387 P.2d, 235, 238 (1963) (holding that damages are a 27 necessary part of a breach of contract claim under Arizona law). Because Plaintiffs have 28 failed to demonstrate a likelihood of success on the merits, their request for injunctive relief -3- 1 is denied. 2 II. Moving Defendants’ Motion to Dismiss 3 To survive a dismissal for failure to state a claim under to Rule 12(b)(6), a complaint 4 must contain more than a “formulaic recitation of the elements of a cause of action[;]” it must 5 contain factual allegations sufficient to “raise a right to relief above the speculative level.” 6 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). And while “[a]ll allegations of 7 material fact are taken as true and construed in the light most favorable” to the non-moving 8 party, Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996), “conclusory allegations of law 9 and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state 10 a claim.” In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1403 (9th Cir. 1996) (internal quotations 11 marks omitted). “[O]nly a complaint that states a plausible claim for relief survives a motion 12 to dismiss.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). Where a complainant seeks 13 relief on the basis of fraud, Federal Rule of Civil Procedure 9(b) further requires the 14 complaint to specify the “who what when, where, and how of the misconduct alleged.” See 15 Kearns, 567 F.3d 1120, 1124 (9th Cir. 2009); see also Swartz v. KPMG LLP, 476 F.3d 756, 16 764 (9th Cir. 2007) (“To comply with Rule 9(b), allegations of fraud must be specific enough 17 to give defendants notice of the particular misconduct which is alleged to constitute the fraud 18 . . . .”) (internal quotation marks omitted). 19 Despite the length of their 127-page Complaint, Plaintiffs make no individualized 20 allegations about any of the Defendants and make no attempt to describe the role of each 21 Defendant. Instead, Plaintiffs’ complaint appears to be an almost identical copy of a 22 complaint rejected by this Court in at least two unrelated, but similar, cases. See, e.g., 23 Steiniger v. Gerspach, No. CV-10-8087-PCT-GMS (D. Ariz. July 1, 2010) (dismissing 24 virtually identical complaint as the one presently at issue); Przybylski v. Stumpf, No. CV-10- 25 8073-PCT-GMS, 2010 WL 2025393 (D. Ariz. May 19, 2010) (dismissing a request for a 26 TRO premised on an almost identical complaint). As with the previously rejected complaints, 27 Plaintiffs devote significant attention to the definition of legal terms such as “malum in se,” 28 “barratry crimes,” and “champerty crimes.” It is unclear, however, why these terms of art, -4- 1 which pertain to criminal matters, are relevant in a civil action involving Defendants’ alleged 2 wrongful foreclosure. (Dkt. # 1, Ex. A at 11–12.) To the extent that Plaintiffs quote several 3 criminal statutes at length, it is entirely unclear why these statutes are relevant to the instant 4 civil case. Plaintiffs also quote excerpts from Minnesota case law, discuss “modern money 5 mechanics,” and explain “how banks create money.” (Dkt. # 1, Ex. A at 75, 83–85.) Such 6 allegations and legal summaries do not explain or provide a legal or factual basis upon which 7 Plaintiffs can obtain relief. 8 Although pro se litigants are generally held to less stringent pleading standards, they 9 must still plead sufficient facts stating a plausible claim for relief. Here, Plaintiffs allege that 10 Defendants have attempted to initiate a wrongful foreclosure proceeding. As discussed 11 above, however, Plaintiffs fail to provide any facts explaining why the foreclosure 12 proceedings are unlawful and how each defendant is involved with the wrongful conduct. 13 They also fail to plead their fraud-based claims with the particularity required by Federal 14 Rule of Civil Procedure 9(b). With respect to claims premised on fraud, Plaintiffs fail to 15 allege facts specifying the “who what when, where, and how of the misconduct alleged.” See 16 Kearns, 567 F.3d at 1124. Rather than provide anything in the way of true substance, 17 Plaintiffs have merely set forth legal definitions and statutory language that are highly 18 irrelevant to Defendants’ alleged misconduct. Plaintiffs’ claims, therefore, are dismissed 19 without prejudice. 20 III. Individual Defendants Motion to Quash Service of Summons 21 Under the Federal Rules of Civil Procedure, service upon an individual may be made 22 by “delivering a copy of the summons and of the complaint to the individual personally; . . 23 . leaving a copy of each at the individual’s dwelling or usual place of abode with someone 24 of suitable age and discretion who resides there; . . . [or] delivering a copy of each to an agent 25 authorized by appointment or by law to receive service of process.” Fed. R. Civ. P. 4(e)(2). 26 In addition, Arizona law provides that service may be made upon an individual residing 27 outside the state by delivering the pleadings by certified mail “to the person to be served.” 28 Ariz. R. Civ. P. 4.2(c). Service by mail, however, is not effective until “return through the -5- 1 post office of the signed receipt” and the filing of an affidavit demonstrating that service was 2 made. Id. 3 Based on their undisputed1 Declarations, the Individual Defendants have not been 4 properly served in this case. (See Dkt. # 10 at 5–11.) According to the uncontroverted record, 5 service has not been made on the Individual Defendants personally or at their homes. Though 6 it appears that Plaintiffs have attempted to serve the Individual Defendants by mailing a copy 7 of the summons to their workplace, “[l]eaving a copy of the summons and complaint at a 8 place of business does not satisfy the “abode” method of service under Rule 4.” See, 9 Gerritsen v. Escobar Y Cordova, 721 F. Supp. 253, 256 (C.D. Cal. 1988) (citations omitted), 10 aff’d sub nom., Gerritsen v. Colsulado Gen. de Mexico, 989 F.2d 340 (9th Cir. 1993), cert. 11 denied, 510 U.S. 828 (1993). The record further provides that Plaintiffs have not delivered 12 the pleadings to an agent authorized to accept service of process. “[A]ny agent who accepts 13 service must be shown to have been authorized to bind his principal by the acceptance of 14 process.” Nelson v. Swift, 271 F.2d 504, 505 (D.C. Cir. 1959) (affirming district court’s grant 15 of defendant’s motion to quash) (internal quotations omitted). The Individual Defendants 16 uncontroverted Declarations provide that none of the businesses, to which Plaintiffs sent the 17 summons and pleadings, were authorized to accept service on the Individual Defendants’ 18 behalf. (Dkt. # 10 at 6–11.) And while Plaintiffs aver that they have effected service by 19 delivering a summons and compliant to the Individual Defendants’ attorney, “Plaintiff[s] 20 have presented no evidence that [Defendants’] attorney . . . is [their] agent for service of 21 process.” See Kruska v. Perverted Justice Found., Inc., 2009 WL 4041941, at *1 (D. Ariz. 22 Nov. 16, 2009) (citing Pochiro v. Prudential Ins. Co. of Am., 827 F.2d 1246, 1248–49 (9th 23 Cir. 1987) (stating that service on an attorney is insufficient unless the attorney has actual 24 authority from the client to accept service on the client’s behalf)). 25 Additionally, the record indicates that Plaintiffs have not properly effected service by 26 27 28 1 While Plaintiffs contend that service has not been effected in this case, they do not appear to dispute the facts set forth in the Individual Declarations. -6- 1 certified mail in accordance with Arizona law. Under the Arizona Rules of Civil Procedure, 2 a party seeking to effect service by certified mail must file an affidavit with the appropriate 3 court attesting that service has been effected in accordance with Rule 4.2(c).2 The affidavit 4 then serves as “prima facie evidence of personal service of the summons and the pleading.” 5 See Ariz. R. C. P. 4.2(c). But while “[p]rima facie evidence of a particular fact raises a 6 rebuttable presumption” of that fact, it does not “conclusively establish . . . that fact.” See 7 Barlage v. Valentine, 210 Ariz. 270, 277, 110 P.3d 371, 378 (Ct. App. 2005) (citation 8 omitted). Hence, the rebuttable presumption of service can “be impeached . . . by clear and 9 convincing evidence” to the contrary. Id. (quotation marks omitted). To the extent Plaintiffs’ 10 affidavits create a rebuttable presumption of service in this case (see Dkt. # 32–39), the Court 11 finds that the Individual Defendants have presented sufficient evidence to rebut that 12 presumption. In their Declarations, the Individual Defendants present uncontroverted 13 affidavit evidence disputing the “accuracy” and “use” of the mailing addresses to which 14 Plaintiffs attempted to effect service. See id. (holding that service had been effected under 15 Rule 4.2(c) because the defendants “did not dispute the accuracy or repeated use of [the] 16 mailing address” at issue). According to the undisputed Declarations, Defendant John 17 Murphy works and resides in Virginia and has not authorized personal mail to be sent to the 18 address in Michigan utilized by Plaintiffs. (See Dkt. # 10 at 8.) Similarly, the Declarations 19 indicate that neither Angelo Mozilo, James Taylor, nor Brian T. Moynihan reside or have 20 authorized mail to be sent to the addresses used by Plaintiffs. In fact, it appears that Mozilo 21 and Taylor do not even work for the businesses to which Plaintiffs mailed the summons and 22 complaint. 23 Because the record indicates that service has not been properly effected on the 24 25 26 27 28 2 Specifically, Rule 4.2(c) requires that “the serving party shall file an affidavit with the court stating (1) that the party being served is known to be located outside the state, (2) that the summons and a copy of the pleading were dispatched to the party being served; (3) that such papers were in fact received by the party as evidence by the receipt, a copy of which shall be attached to the affidavit; and (4) the date of receipt by the party being served and the date of the return of the receipt to the sender.” -7- 1 Individual Defendants, their Motion to Quash Service of Summons is granted. Nevertheless, 2 Federal Rule of Civil Procedure 4(m) requires service of process within one-hundred and 3 twenty (120) days from the filing of a complaint. Plaintiffs, therefore, still have time to effect 4 service. Because the Original Complaint was filed on April 30, 2010, Plaintiffs have fifty- 5 eight (58) days remaining, or until August 28, 2010, to effect service on the Individual 6 Defendants. 7 IV. Defendants’ Motion to Strike 8 The Court grants the Motion to Strike filed by Defendants John Vella and Bear 9 Stearns Residential Mortgage Corporation. Specifically, these Defendants move to strike nine 10 filings identified by Plaintiffs as “Judicial Notices.” (See Dkt. ## 13–18, 21–23.) To the 11 extent Plaintiffs seek judicial notice of these documents pursuant to Federal Rule of Evidence 12 201, the Court finds that these filings are not the proper subject of judicial notice. Moreover, 13 because these documents are not proper filings under the Federal Rules of Civil Procedure 14 and the Local Rules of this District, the Court orders these items stricken from the docket 15 And though Defendants have not moved to strike “Judicial Notices 10–11” (see Dkt. # 16 30–31.), the Court strikes these filings on its own motion. 17 V. Plaintiffs’ Amended Complaint 18 On June 29, 2010, Plaintiffs filed an Amended Complaint. They did not, however, 19 seek leave of this Court to file that amended pleading. Federal Rule of Civil Procedure 15(a) 20 provides that a plaintiff may amend its complaint “once as a matter of course within 21 days 21 after serving it” or “within 21 days after service of a motion under Rule 12(b).” Otherwise, 22 a party “may amend its pleading only with the opposing party’s written consent or the court’s 23 leave.” Fed. R. Civ. P. 15(a)(2). Plaintiffs served at least one of the Defendants in this case 24 as early as April 12, 2010. (See Dkt. # 39.) Meanwhile, the first motion to dismiss pursuant 25 to 12(b)(6) was filed on May 14, 2010. (See Dkt. # 7.) Because the time period for filing an 26 Amended Complaint as a matter of course has expired, and because Plaintiffs filed their 27 Amended Complaint without leave to amend, their June 29, 2010 complaint is stricken. 28 -8- 1 VI. Plaintiff’s Motion for Leave to Amend 2 Several days after filing their Amended Complaint, Plaintiffs filed their Motion for 3 Leave to Amend. The Court, however, denies Plaintiffs’ Motion because they failed to attach 4 a proposed amended compliant to their filing. Motions and stipulations for leave to amend 5 are governed by Local Rule of Civil Procedure 15.1. Under that Rule, “A party who moves 6 for leave to amend a pleading, or who seeks to amend a pleading by stipulation and order, 7 must attach a copy of the proposed amended pleading as an exhibit to the motion or 8 stipulation.” LRCiv 15.1. The Rule further provides that “[t]he proposed amended pleading 9 is not to incorporate by reference any part of the preceding pleading, including exhibits.” 10 Id. This way, the Court can carefully consider Plaintiffs’ motion for leave to amend, evaluate 11 the proposed amendment, and then determine whether leave to amend is appropriate. 12 Pursuant to Federal Rule 15(a)(2), leave to amend should be freely granted when justice so 13 requires; however, where amendment is futile, courts need not grant leave to amend. See 14 Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 766 (9th Cir. 1986). 15 Should Plaintiffs again seek leave to amend, they are advised that any proposed 16 complaint must adhere to the Federal Rules of Civil Procedure to avoid dismissal. First, 17 Plaintiffs must provide sufficient facts explaining what rights they believe were violated, the 18 name of the person, persons, or entities who committed each violation, exactly what that 19 individual did or failed to do, how the action or inaction of that person is connected to the 20 violation of Plaintiffs’ rights, and what specific injury Plaintiffs suffered because of the other 21 person’s conduct. See Rizzo v. Goode, 423 U.S. 362, 371–72, 377 (1976). Each claim of an 22 alleged violation must also be set forth in a separate count. 23 If Plaintiffs seek leave to file another amended complaint, Plaintiffs are further 24 advised to give special attention to Federal Rule of Civil Procedure 8(d)(1), which requires 25 “each averment of a pleading to be ‘simple, concise, and direct.’” McHenry v. Renne, 84 F.3d 26 1172, 1179 (9th Cir. 1996) (citation omitted). A complaint will generally be dismissed if it 27 is so “verbose, confused, and redundant that its true substance, if any, is well disguised.” 28 Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969). “Something labeled a -9- 1 complaint but written more as a press release, prolix in evidentiary detail, yet without 2 simplicity, conciseness and clarity as to whom plaintiffs are suing for what wrongs, fails to 3 perform the essential functions of a complaint.” McHenry, 84 F.3d at 1180. In order to assist 4 litigants to understand the Rule 8(d) requirements that averments “be simple, concise and 5 direct,” Rule 84 of the Federal Rules of Civil Procedure provides samples in an Appendix 6 of Forms, which are “intended to indicate the simplicity and brevity of statement which the 7 rules contemplate.” Id. at 1177. Examples of complaints for different types of claims are 8 contained in forms 10 through form 21. 9 To the extent Plaintiffs again seek leave to amend, they are also advised to remove the 10 portions of the original complaint identified as irrelevant in this Order and add relevant 11 factual allegations sufficient to “raise a right to relief above the speculative level.” See 12 Twombly, 550 U.S. at 555. To a small extent, it appears that Plaintiffs have attempted to do 13 this in their improperly filed June 29, 2010 complaint. Nevertheless, even if Plaintiffs had 14 attached that pleading to their Motion for Leave to Amend, the Court would deny the Motion 15 because that pleading does not cure all of the Original Complaint’s deficiencies identified 16 in this Order. Plaintiffs are further advised to carefully review their proposed complaint, 17 remove unnecessary and repetitive allegations, and organize that document in clear and 18 concise manner.3 Plaintiffs are also advised that if they fail to comply with the Court’s 19 instructions, their case may be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil 20 Procedure. See McHenry, 84 F.3d at 1177 (affirming dismissal with prejudice of amended 21 complaint that did not comply with rule 8(a)). 22 IT IS THEREFORE ORDERED: 23 (1) Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction 24 25 26 27 28 3 Additionally, it is unclear whether Plaintiffs intended to bring this case against Bank of America N.A., BAC Home Loans Servicing LP, Recontrust Company N.A., Mortgage Electronic Registration Systems, Inc., and Countrywide Home Loans Inc. These entities moved to dismiss in an abundance of caution and their motion has been granted. To the extent that Plaintiff seeks to bring claims against any or all of these entities, Plaintiffs must make their intent clear in the caption and text of any proposed amended complaint. - 10 - 1 (Dkt. # 40) is DENIED. 2 (2) The Moving Defendants’ Motions to Dismiss (Dkt. ## 7; 9) are GRANTED. 3 Defendants Bear Stearns, John Vella, BAC Home Loans Servicing LP, Bank of America, 4 Countrywide Homeloans, Inc., Mortgage Electronic Registration Systems, Inc., and 5 Recontrust Company, N.A. shall be DISMISSED from this case without prejudice. 6 (3) The Individual Defendants’ Motion to Quash Service (Dkt. # 10) is GRANTED. 7 Plaintiffs shall have until August 28, 2010 to effect service of process on R. K. Arnold, 8 Angelo Mazilo, Brian T. Moynihan, and James Taylor. Should Plaintiffs fail to provide proof 9 of service by that date, the Clerk of Court is directed to TERMINATE these Defendants 10 without prejudice. 11 (4) The Motion to Strike (Dkt. # 38) filed by Defendants John Vella and Bear Stearns 12 Residential Mortgage Corporation is GRANTED. The Clerk of Court is directed to STRIKE 13 Plaintiffs’ “Judicial Notices” (Dkt. ## 13–18, 21–23, 30–31). 14 15 (5) The Clerk of Court is directed to STRIKE Plaintiffs’ June 29, 2010 Amended Complaint (Dkt # 42). 16 17 (6) Plaintiffs’ Motion for Leave to Amend (Dkt. # 43) is DENIED for failure to comply with Local Rule of Civil Procedure 15.1. 18 (7) Should Plaintiffs again seek to file an amended complaint, they must first request 19 leave of the Court and strictly adhere to Federal Rule of Civil Procedure 15 and Local Rule 20 15.1. 21 DATED this 6th day of July, 2010. 22 23 24 25 26 27 28 - 11 -
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