Sipe v. Countrywide Bank, et al.

Filing 86

ORDER Dismissing Defendant Desilva Without Prejudice signed by Magistrate Judge Jennifer L. Thurston on 1/31/2012. (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,

) Case No.: 1:09-cv-00798 JLT
)
Plaintiff,
) ORDER DISMISSING DEFENDANT
) DESILVA WITHOUT PREJUDICE
v.
)
)
)
COUNTRYWIDE BANK, et al.,
)
)
Defendants.
)
_______________________________________ )
On November 1, 2010, Plaintiff requested a Clerk’s entry of default against Defendant 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 DeSilva had been served with the summons and complaint.

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(Doc. 64)

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On November 23, 2010, the Court issued an Order After Scheduling Conference. (Doc. 67)

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In this order, the Court noted that Plaintiff intended to dismiss the matter against Defendants DeSilva

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and Norberg and to pursue the matter against only Defendant Sierra Pacific Mortgage. Id. at 2.

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However, Plaintiff has never filed the request for dismissal as to Defendant DeSilva. On September

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21, 2011, the Court denied Plaintiff’s application for default judgment sought against “Defendants”

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in part because Plaintiff had never filed proof that Desilva had been 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 as

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

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served with the summons and complaint.

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Despite this, on January 10, 2012, Plaintiff filed another motion for default judgment without

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

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of default. As a result, on January 11, 2012, the Court issued Plaintiff another order to show cause

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why the matter should not be dismissed against Defendant DeSilva due to his failure to serve her

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summons and complaint in a timely fashion. (Doc. 84)

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On January 17, 2012, Plaintiff’s counsel responded to the order to show cause and now

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admits that he has never served Defendant DeSilva. (Doc. 85) However, the Court is disturbed by

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counsel’s incredible explanation for his failure to do so. In essence, counsel reports that he just

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realized that no proof of service was ever filed as to Defendant DeSilva. Id. at 1. In taking this

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position, he fails to address–in total–the repeated reminders and admonishments from this Court that

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Defendant DeSilva had not been served. Moreover, he reports that he does not have a physical

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address for this Defendant which seems to belie his claim that he had been told that DeSilva had

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been served at some point in the past. Id.

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Counsel urges that this “mistake” should not be held against his client. However, this

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position would have more convincing force had counsel made any cogent explanation why the

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Court’s repeated reminders service had not been accomplished, did not trigger his awareness of this

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state of affairs before now. Despite counsel’s characterization, this circumstance is not an

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“oversight” but a purposeful refusal to comply with the orders of this Court. Moreover, counsel’s

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explanation is inconsistent with Plaintiff’s positions taken in this case. As noted above, when first

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confronted with his failure to serve Defendant DeSilva more than a year ago on November 23, 2010,

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Plaintiff–through counsel--reported that he intended to dismiss the matter as to DeSilva. (Doc. 67 at

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2)

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Additionally, though counsel hopes that he’ll have accomplished service on this Defendant

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by the end of February, he fails to explain why he thinks this is likely to occur and makes no showing

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whatsoever why Defendant DeSilva has not been prejudiced by the delay in service of more than two
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and a half years. Counsel’s failure to make these explanations is particularly egregious in light of

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the Court’s warning issued to Plaintiff in its January 11, 2012 order that, “unless he demonstrates

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good cause for his failure to show proof of service to Defendant DeSilva that Court, on its own

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motion, the Court shall dismiss the matter as to this defendant.” (Doc. 84 at 3)

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According to Fed. R. Civ. P. 4,

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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. Even now, Plaintiff fails

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to explain his failure to serve this Defendant with any semblance of adequacy.

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ORDER

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Therefore, on its own motion, the Court ORDERS,

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1.

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The complaint as to Defendant Carol DeSilva is DISMISSED WITHOUT
PREJUDICE.

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IT IS SO ORDERED.

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Dated: January 31, 2012
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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