Richard Graff v. CitiMortgage, Inc et al

Filing 31

(IN CHAMBERS) ORDER TO SHOW CAUSE RE: DISMISSAL by Judge Fernando M. Olguin.Plaintiff is granted until 10/2/2017 to file a First Amended Complaint. (vdr)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 17-3439 FMO (PJWx)

Title

Richard Graff v. CitiMortgage, Inc., et al.

Present: The Honorable

Date

Sept. 20, 2017

Fernando M. Olguin, United States District Judge

Vanessa Figueroa

None Present

Deputy Clerk

Court Reporter / Recorder

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

None Present

None Present

Proceedings:

(In Chambers) Order to Show Cause Re: Dismissal

By order dated July 28, 2017 plaintiff was ordered to show cause, on or before August 4,
2017, why this action should not be dismissed for lack of prosecution for failure to complete
service of the summons and complaint as required by Rule 4(m) of the Federal Rules of Civil
Procedure.1 (See Dkt. 17, Court’s Order of July 28, 2017 (“OSC”)). Plaintiff responded to the
OSC, (see Dkt. 22, Reply to Order to Show Cause Re” Dismissal Re: Lack of Prosecution), and
while not directly addressing whether defendants Cal-Western Reconveyance Corp. (“CalWestern”) and NBS Default Services (“NBS”) have been served with process (see, generally, Dkt.
22, Response), plaintiff requested that he be permitted to file an amended complaint, after which
he would serve all defendants. (See id. at 2).
On September 1, 2017, the court granted plaintiff additional time to serve Cal-Western and
NBS with the summons and complaint given his pro se status. (See Dkt. 29, Court’s Order of
September 1, 2017, at 2). The court also granted plaintiff until September 8, 2017, to file a First
Amended Complaint. (See id.).
As of the date of this Order, plaintiff has not filed a First Amended Complaint. (See,
generally, id.). Due to plaintiff’s pro se status, the court will provide plaintiff with one final
opportunity to file a First Amended Complaint and effect service of process on Cal-Western and
NBS.
Based on the foregoing, IT IS ORDERED THAT:
1. Plaintiff is granted until October 2, 2017, to file a First Amended Complaint.
2. The first amended complaint must be labeled “First Amended Complaint,” filed in
compliance with Local Rule 3-2 and contain the case number assigned to the case, i.e., Case No.
CV 17-3439 FMO (PJWx). In addition, plaintiff is informed that the court cannot refer to a prior
pleading in order to make his First Amended Complaint complete. Local Rule 15-2 requires that

1

Unless otherwise indicated, all “Rule” references are to the Federal Rules of Civil Procedure.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 17-3439 FMO (PJWx)

Date

Title

Sept. 20, 2017

Richard Graff v. CitiMortgage, Inc., et al.

an amended pleading be complete in and of itself without reference to any prior pleading. This
is because, as a general rule, an amended pleading supersedes the original pleading. See
Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“It is well-established
in our circuit that an amended complaint supersedes the original, the latter being treated thereafter
as non-existent. In other words, ‘the original pleading no longer performs any function[.]’”)
(citations and internal quotation marks omitted).
3. Plaintiff is cautioned that failure to timely file a First Amended Complaint shall result in
Cal-Western and NBS being dismissed from this action without prejudice for failure to prosecute
and/or failure to comply with a court order. See Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co.,
370 U.S. 626, 629-30, 82 S.Ct. 1386, 1388 (1962).
4. Plaintiff shall effect service of process in compliance with Rule 4 no later than October
9, 2017.
5. The Order to Show Cause is hereby continued pending compliance with paragraph one
above.
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Initials of Preparer

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vdr

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