Elvenia Bratton v. Ocwen Loan Servicing et al

Filing 64

ORDER SETTING ASIDE DEFENDANT HSBC BANK USA N.A.'s DEFAULT 29 and ORDER TO SHOW CAUSE Why Action Should Not Be Dismissed for Lack of Prosecution by Judge Dale S. Fischer. Plaintiff's Response to Order to Show Cause due by 8/8/2011. (rne) Modified on 6/16/2011 (rne).

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
MEMORANDUM

Case No.
Title

Date

CV 10-9462 DSF (SSx)

6/15/11

Elvenia Bratton v. Ocwen Loan Servicing, et al.

Present: The
Honorable

DALE S. FISCHER, United States District Judge

Debra Plato
Deputy Clerk

Not Present
Court Reporter

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

(In Chambers) Order Setting Aside Defendant HSBC Bank USA
N.A.’s Default and Order to Show Cause Why Action Should Not
Be Dismissed for Lack of Prosecution
On May 12, 2011, the Court ordered Plaintiff to show cause why Defendant HSBC
Bank USA N.A.’s default should not be set aside because it appeared Defendant was not
properly served. (Docket No. 56.) The Court raised two separate concerns in the order to
show cause. First, it appeared that Plaintiff may have attempted to effectuate service
under Rule 5(b) instead of Rule 4(h) of the Federal Rules of Civil Procedure. (Id.)
Second, it was not clear that the branch operations officer allegedly served was
authorized to receive service on behalf of HSBC Bank. (Id.) Plaintiff’s response to the
order to show cause does not substantively address either concern. For this reason, the
Court sets aside HSBC Bank’s default.
Proceedings:

Absent a showing of good cause, an action must be dismissed without prejudice if
the summons and complaint are not served on a defendant within 120 days after the
complaint is filed. Fed. R. Civ. Proc. 4(m). Generally, defendants must answer the
complaint within 21 days after service. Fed. R. Civ. Proc. 12(a)(1).
In the present case, it appears that one or more of these time periods has not been
met. Accordingly, the Court, on its own motion, orders plaintiff(s) to show cause in
writing on or before Monday, August 8 , 2011, why this action should not be dismissed
as to the applicable defendant(s) for lack of prosecution. Pursuant to Rule 78 of the
Federal Rules of Civil Procedure, the Court finds that this matter is appropriate for
submission without oral argument. The Order to Show Cause will stand submitted on
CV-90 (12/02)

MEMORANDUM

Page 1 of 2

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
MEMORANDUM
that date.
Filing of the following on or before the date indicated above will constitute a
satisfactory response to the Order to Show Cause:
Proofs of service of summons and complaint on all defendants for whom such
documents have not yet been filed.

IT IS SO ORDERED.

CV-90 (12/02)

MEMORANDUM

Page 2 of 2