Mary Amaral, et al v. Wachovia Mortgage Corporation et al

Filing 142

ORDER RE Status of Appeal and Claims against remaining defendant, signed by District Judge Oliver W. Wanger on 9/22/2011. (Kusamura, W)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARY AMARAL, et al.,
Plaintiffs,

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v.

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ORDER RE STATUS OF APPEAL
AND CLAIMS AGAINST
REMAINING DEFENDANT

WACHOVIA MORTGAGE
CORPORATION, et al.,
Defendants.

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1:09-cv-00937 OWW GSA

This is a mortgage fraud case concerning Plaintiffs’

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residence located in Lemoore, California.

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originally filed in Kings County Superior Court, was removed

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to the Eastern District of California on October 1, 2009.

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Doc. 2.

This case,

The original complaint named as Defendants Wachovia

Mortgage Corporation (“Wachovia”), Carrington Mortgage
Services LLC (“Carrington”), and Does 1-50.

Doc. 24.

After

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an initial round of dispositive motions, the complaint was

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dismissed with leave to amend.

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Docs. 43 & 60.

Plaintiffs’ first amended complaint, again naming

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Wachovia and Carrington, Doc. 73, was challenged by a second

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round of dispositive motions.

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All claims against Wachovia

and Carrington were dismissed with prejudice.

Doc. 110.

However, Plaintiffs were granted leave to amend to include
claims against additional Defendants, “MTC and Vasquez.”
at 12.
Plaintiffs’ second amended complaint (“SAC”), filed
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Id.

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February 22, 2011, asserts claims of fraud and conversion

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against Heather Vasquez.

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on May 4, 2011, Doc. 129, but never responded to the SAC.

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Doc. 115.

Ms. Vasquez was served

Default was entered against her June 17, 2011.

Doc. 134.

Since then, Plaintiffs have taken no steps to secure default
judgment or otherwise proceed against Ms. Vasquez.
On March 9, 2011, Plaintiffs filed a notice of appeal

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from the order dismissing with prejudice all claims against

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Carrington and Wachovia.

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been processed.

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Doc. 120.

That appeal has not yet

Judgment has not yet been entered in favor

of Wachovia or Carrington because claims are still pending
against Ms. Vasquez.

Federal Rule of Civil Procedure 54(b)

prohibits entry of judgment against “one or more, but fewer

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than all, claims or parties” unless the “court expressly

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determines that there is no just reason for delay.”

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power to make such a determination “is largely discretionary,

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to be exercised in light of judicial administrative interests

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as well as the equities involved, and giving due weight to

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The

the historic federal policy against piecemeal appeals.”
Reiter v. Cooper, 507 U.S. 258, 265 (1993) (internal
citations and quotations omitted).

Rule 54(b) should be

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applied using a “pragmatic approach focusing on severability

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and efficient judicial administration.”

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Airlines, Inc. v. Goodyear Tire & Rubber Co., 819 F.2d 1519,

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Continental

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1525 (9th Cir. 1987).

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appropriate where the matters disposed of are “sufficiently

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severable factually and legally from the remaining matters,”

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Certification under Rule 54(b) may be

and could “completely extinguish [ ] ... liability.”

Id.

Here, the interests of judicial efficiency do not favor a
separate appeal.

Default has been entered against the

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remaining defendant.

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proceed with the remaining claims against Ms. Vasquez should

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not be an overly time-consuming process.

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circumstances, efficient judicial administration calls for

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Pursuing default judgment or otherwise

Under the

resolution of the entire case before an appeal is permitted.
Plaintiffs must take appropriate action to prosecute the
remaining claims against Ms. Vasquez within thirty (30) days

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of service of this order.

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dismissal for lack of prosecution.

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retirement of the assigned district judge, the parties will

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shortly receive notice of reassignment of this case.

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notice shall not alter the deadline set herein.

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Failure to do so will result in

SO ORDERED
Dated: September 22, 2011

That

/s/ Oliver W. Wanger
United States District Judge

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Due to the pending

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