Sipe v. Countrywide Bank, et al.

Filing 84

ORDER to SHOW CAUSE signed by Magistrate Judge Jennifer L. Thurston on 1/11/2012. Show Cause Response due by 1/17/2012. (Leon-Guerrero, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VINCENT SIPE,

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Plaintiff,
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v.
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COUNTRYWIDE BANK, et al.,
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Defendants.
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_______________________________________ )

Case No.: 1:09-cv-00798 JLT
ORDER TO PLAINTIFF TO SHOW CAUSE
WHY THE MATTER SHOULD NOT BE
DISMISSED AS TO DEFENDANT DESILVA

On November 1, 2010, Plaintiff requested a Clerk’s entry of default against Defendants Carol

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DeSilva and others. (Doc. 61) On November 2, 2010, the Clerk declined to enter default because

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Plaintiff had failed to file proof that the defendants–including DeSilva– had been served with the

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summons and complaint. (Doc. 64) To date, Plaintiff has not filed proof demonstrating service

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to Carol DeSilva.

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After this, on November 23, 2010, the Court issued an Order After Scheduling Conference.

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(Doc. 67) In this order, the Court noted that Plaintiff intended to dismiss the matter against

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Defendants DeSilva and Norberg and to pursue the matter against only Defendant Sierra Pacific

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Mortgage. Id. at 2. However, Plaintiff has never filed the request for dismissal as to Defendant

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DeSilva.

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On September 21, 2011, the Court denied Plaintiff’s application for default judgment sought
against “Defendants” in part because Plaintiff had never filed proof that Desilva had been
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served. (Doc. 76 at 2)

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On November 17, 2011, the Court issued to Plaintiff an order to show cause why the matter

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should not be dismissed based upon his failure to prosecute the action. (Doc. 79) In that order, the

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Court recited the details set forth above and made clear that Plaintiff has not filed proof of service

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as to Defendant DeSilva. Based thereon, the Court concluded that Defendant DeSilva has never

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been served with the summons and complaint.

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Despite this, Plaintiff has, once again, filed a motion for default judgment without filing a

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proof of service as to Defendant DeSilva and without having first obtained the clerk’s entry of

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default. As the Court has made clear repeatedly, the only defendant against which Plaintiff may

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currently pursue default judgment is Defendant Norberg.

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Plaintiff’s continued refusal to file proof of service related to Defendant DeSilva is a
violation of Fed. R. Civ. P. 4. This rule provides,

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If a defendant is not served within 120 days after the complaint is filed, the court - on
motion or on its own after notice to the plaintiff - must dismiss the action without
prejudice against the defendant or order that service be made within a specified time.
But if the plaintiff shows good cause for the failure, the court must extend the time for
service for an appropriate period.

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Rule 4(m) “encourages efficient litigation by minimizing the time between the commencement of an

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action and service of process.” Electric Specialty Co. v. Road and Ranch Supply, Inc., 967 F.2d 309,

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311 (9th Cir. 1992) (addressing former F. R. Civ. P. 4(j).)

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This matter has been pending for more than two and a half years. The Court has repeatedly

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reminded Plaintiff that he has not filed proof of service as to Defendant DeSilva and Plaintiff has

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repeatedly ignored these reminders and stalwartly refuses to file the proof.

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ORDER

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Based upon the foregoing, the Court ORDERS Plaintiff to show cause, no later than

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January 17, 2012, why the matter should not be dismissed as to Defendant DeSilva for his failure to

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comply with Fed. R. Civ. P. 4(m). Plaintiff is cautioned that unless he demonstrates good cause for

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his failure to show proof of service to Defendant DeSilva that Court, on its own motion, the Court

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shall dismiss the matter as to this defendant.

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IT IS SO ORDERED.

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Dated: January 11, 2012
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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