Sipe v. Countrywide Bank, et al.

Filing 91

ORDER Dismissing Defendant Financial Advantage, Inc. without Prejudice, signed by Magistrate Judge Jennifer L. Thurston on 4/18/12. (Verduzco, M)

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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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Case No. 1:09-cv-00798 JLT
Plaintiff,

ORDER DISMISSING DEFENDANT

v.

FINANCIAL ADVANTAGE, INC.

COUNTRY WIDE BANK, et al.,

WITHOUT PREJUDICE

Defendants.
_____________________________________

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

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Financial Advantage, Inc. and others. (Doc. 61). On November 2, 2010, the Clerk declined to

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enter default because Plaintiff had failed to file proof that Financial Advantage, Inc. had been

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served with the summons and complaint. (Doc. 64).

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

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

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

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(“SPM”). (Id. at 2.) Defendant Financial Advantage, Inc. (the employer for DeSilva and

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Norberg) is not mentioned in the order. (Id.)

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On August 1, 2011, Plaintiff submitted a default package to the Court. (Doc. 75).

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However, it only requested the Court enter default judgment against Defendant Norberg. (Doc.

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75 at 11). On September 21, 2011, the Court denied Plaintiff’s application for default judgment
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sought against “Defendants” in part because Plaintiff had never filed proof that Defendant

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DeSilva was served and there was no substantive evidence against Norberg. (Doc. 76 at 2). The

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Court later learned that SPM had been previously been dismissed from the case. (Id.)

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On November 17, 2011, the Court issued to Plaintiff an Order to Show Cause why the

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

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order, the Court recited the details set forth above and made clear that Plaintiff had not filed proof

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of service as to Defendant DeSilva. Based thereon, the Court concluded that Defendant DeSilva

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has never been served with the summons and complaint. (Id.)

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Despite this, on January 10, 2012, Plaintiff filed another motion for default judgment

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without filing a proof of service as to Defendant DeSilva and without having first obtained the

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clerk’s entry of default. (Doc. 83). As a result, on January 11, 2012, the Court issued Plaintiff

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another order to show cause why the matter should not be dismissed against Defendant DeSilva

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due to his failure to serve the 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 regarding

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Defendant Silva and admitted that he has never served Defendant DeSilva. (Doc. 85). In its

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order dismissing Defendant DeSilva, the Court noted that it was disturbed by counsel’s incredible

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explanation that he just realized that no proof of service was ever filed as to Defendant DeSilva.

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(Id. at 1; Doc. 86). Counsel urged that this “mistake” should not be held against his client. (Doc.

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86 at 2).

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On April 17, 2012, the Court issued another Order to Show Cause to Plaintiff regarding

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Defendant Financial Advantage, Inc. (Doc. 89). The Court ordered Plaintiff to show cause why,

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after the issues he has had with service of other defendants, the matter should not be dismissed for

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his failure to serve Defendant Financial Advantage, Inc. with the operative summons and

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complaint or take any action with regard to this Defendant since November 2010. (Id.)

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Plaintiff’s counsel responded to the Court’s April 17, 2012 order to show cause the same

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day. (Doc. 90). His response is nearly identical to the response he filed in January 2012

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regarding the prior order to show cause; specifically, he asserts that his process server informed

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him that the Defendant had been served. (Doc. 85 and 90). Counsel claims that after he received
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the Court’s order, he checked the file and realized service on Defendant Financial Advantage, Inc.

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was defective. (Id. at 1). As before, Plaintiff fails to address why he did not heed the prior

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admonishment from this Court in 2010 that Defendant Financial Advantage, Inc. had not been

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served or why he has failed to initiate any action against Defendant Financial Advantage, Inc.

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since 2010.
Counsel urged, as he did in his prior response to the Court’s order to show cause, that this

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“mistake” should not be held against his client. (Doc. 86 at 2). Plaintiff’s position would have

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carried more weight had counsel made any cogent explanation why he did not accomplish service

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on Defendant Financial Advantage, Inc., given his awareness of the service issues in this case

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and the issues he had with the process server for this case. Despite counsel’s characterization,

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this circumstance is not an “oversight” but a purposeful refusal to comply with the orders of this

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Court. Moreover, counsel’s explanation is inconsistent with Plaintiff’s positions taken in this

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case. As noted above, when first confronted with his failure to serve Defendant Financial

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Advantage, Inc. in November 2010, Plaintiff–through counsel--reported that he only intended to

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proceed against Defendant SPM. (Doc. 67 at 2)
Though counsel hopes that he’ll accomplish service on Defendant Financial Advantage,

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Inc. by May 2, 2012, he fails to explain why he thinks this is likely to occur given that he has only

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“attempted to locate” Defendant Financial Advantage, Inc. (Doc. 90 at 2). Additionally, he

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makes no showing whatsoever why Defendant Financial Advantage, Inc. has not been prejudiced

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by the delay in service of nearly three years. Counsel’s failure to make these explanations is

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particularly egregious in light of the Court’s warning issued to Plaintiff in its April 17, 2012 order

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that, “unless he demonstrates good cause for his failure to show proof of service to Defendant

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Financial Advantage, Inc. that the Court, on its own motion, shall dismiss the matter as to this

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Defendant.” (Doc. 89 at 3)

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ORDER

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Therefore, on its own motion, the Court ORDERS,

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The complaint as to Defendant Financial Advantage, Inc. is DISMISSED

WITHOUT PREJUDICE.

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IT IS SO ORDERED.
Dated:

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April 18, 2012

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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DEAC_Sig nature-END:

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