Verduzco et al v. Indymac Bank Home Loan Servicing et al
Filing
58
RULE 4(M) NOTICE signed by Judge Garland E. Burrell, Jr. on 05/12/10 ORDERING that plfs are to show proof of service and/or "show good cause for the failure" to serve dfts as outlined by 05/22/10. (Benson, A.)
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARTURO VERDUZCO and DELILA VERDUZCO, ) ) ) Plaintiff, ) ) v. ) ) INDYMAC BANK HOME LOAN SERVICING; ) INDYMAC FEDERAL BANK, FSB; INDYMAC ) MORTGAGE SERVICES, a division of ) ONE WEST BANK FSB; BAC HOME LOAN ) SERVICING LP, a subsidiary of BANK ) OF AMERICA, N.A.; MORTGAGE ) ELECTRONIC REGISTRATION SYSTEMS, ) INC.; SIERRA PACIFIC MORTGAGE; ) NDEX WEST, LLC; U.S. BANK NATIONAL ) ASSOCIATION; WBJ, INC.; WILLMA E. ) SPARANO; DANIEL RUPP, ) ) Defendants. ) ) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
2:09-cv-02371-GEB-KJM RULE 4(M) NOTICE
Plaintiffs have not served several defendants named in their First Amended Complaint ("FAC") filed on November 10, 2009. In the
Joint Status Report ("JSR") filed on December 31, 2009, Plaintiffs stated that Defendant Willma E. Sparano ("Sparano") had not yet been served. The Court issued a Rule 4(m) notice on January 14, 2010,
requiring Plaintiffs to "provide proof of service and/or show good cause for the failure to serve this Defendant" by January 22, 2010. However, since Sparano was first named in the FAC, the Rule 4(m) prescribed 120-day period to serve Sparano expired March 10, 2010, and therefore the January 14, 2010 Rule 4(m) notice was premature. However, the 120-day period to serve defendants first named in the FAC 1
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has elapsed, and it does not appear that Plaintiffs have served Sparano; nor does the docket indicate that Plaintiffs have served several other defendants named in the FAC. Plaintiffs are hereby notified under Federal Rule of Civil Procedure ("Rule") 4(m) that Defendants Willma E. Sparano; IndyMac Federal Bank, FSB; BAC Home Loan Servicing, LP, a Subsidiary of Bank of America, N.A.; and U.S. Bank National Association could be dismissed as Defendants in this action unless Plaintiffs provide proof of service and/or "show[] good cause for the failure" to serve these defendants within Rule 4(m)'s 120 day prescribed period, in a filing due no later than 4:00 p.m. on May 22, 2010. Further, Plaintiffs filed a "Summons Returned Executed" for Defendant NDEX West, LLC on October 7, 2009. (Docket No. 15.)
However, this docket entry provides that CT Corporation, which is not a party to this action, was served with that summons, and not NDEX West LLC. See Fed. R. Civ. P. 4(a)(1) ("A summons must . . . be Further, Plaintiffs have not provided Therefore, Plaintiffs
directed to the defendant[.]").
proof of service of the FAC on NDEX West, LLC.
are also notified that Defendant NDEX West, LLC could be dismissed as a defendant in this action unless Plaintiffs provide proof of service and/or "show[] good cause for the failure" to serve this defendant within Rule 4(m)'s 120 day prescribed period, in a filing due no later than 4:00 p.m. on May 22, 2010. Lastly, Plaintiffs name both IndyMac Bank Home Loan Servicing and IndyMac Mortgage Services, a Division of OneWest Bank, FSB in their FAC. Servicing. Plaintiffs served only Indymac Bank Home Loan
However, Indymac Mortgage Services, a Division of OneWest
Bank, FSB has filed motions to dismiss both Plaintiffs' original 2
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complaint and Plaintiffs' FAC, in which it states it was "erroneously sued [] as IndyMac Bank Home Loan Servicing." Plaintiffs did not
correct their FAC to reflect this error; nor did Plaintiffs address the error in their Opposition to Indymac Mortgage Services, a Division of OneWest Bank, FSB's motion. Therefore, IndyMac Bank Home Loan
Servicing could be dismissed as an erroneously sued party unless Plaintiffs explain in a filing on or before 4:00 p.m. on May 22, 2010, why this named defendant should not be dismissed. Dated: May 12, 2010
GARLAND E. BURRELL, JR. United States District Judge
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