Johnson et al v. Bank United FSB et al

Filing 28

ORDER signed by Judge Garland E. Burrell, Jr on 5/9/11 ORDERING the Order of Dismissal 18 is VACATED; pltfs have 60 days to serve dfts Freestand Financial and Bank United FSB; and the Status Conference is CONTINUTED to 9/19/2011 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr..(Carlos, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Carolina Johnson and Claude
Colwell,

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Plaintiff,
v.
Bank United F.S.B., Bank United,
Freestand Financial, and Does 150, inclusive,
Defendants.
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2:10-cv-02567-GEB-KJN
ORDER VACATING DISMISSAL
ORDER AND CONTINUING STATUS
(PRETRIAL SCHEDULING)
CONFERENCE

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On April 19, 2011, Plaintiffs filed a “Statement Regarding

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Order Dismissing Defendants Bank United F.S.B. and Freestand Financial,”

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in which they request to be heard concerning the Federal Rule of Civil

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Procedure (“Rule”) 4(m) dismissal of these defendants, “or, in the

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alternative . . . request the Court modify [the April 18, 2011 Order of

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Dismissal].” (ECF No. 20, 2:8-10.) Plaintiffs argue the April 18, 2011

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Order of Dismissal “conflicts with the direction given in [the March 8,

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2011 Order Continuing Status Conference and Rule 4(m) Notice (“4(m)

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Notice”)].” Id. at 2:6-7. Specifically, Plaintiffs state the 4(m) Notice

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“gave Plaintiffs until April 25, 2011 to show cause in a written

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statement why Defendants had not been served.” Id. at 7-8.

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Plaintiffs

are

incorrect.

The

4(m)

Notice

states

that

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Plaintiffs were required to provide proof of service or show “good

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cause” for their failure to serve Bank United F.S.B. and Freestand

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Financial by March 14, 2011. (ECF No. 16, 1:19-24.) The April 25, 2011

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date on which Plaintiffs rely is the date by which Plaintiffs had to

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take the steps necessary to prosecute this action as a default matter

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against these defendants, if they had been served. Id. at 1:25-2:4.

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Nevertheless, the Court will consider Plaintiffs’ request in their April

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19, 2011 filing that they be given an additional ninety days to serve

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Bank United F.S.B. and Freestand Financial. (ECF No. 20, 2:11-18.)

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Plaintiffs state the following in support of their request for

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additional time to serve Bank United F.S.B. and Freestand Financial:

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“Plaintiffs have been diligently pursuing service of Unserved Defendants

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but due to Unserved Defendants status in Bankruptcy, service has not

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been possible. Plaintiffs are now researching the insurance coverage of

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Unserved Defendants to see if any assets due to insurance coverage

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remain available.” (ECF No. 20, 2:12-16.) Therefore, the April 18, 2011

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Order of Dismissal (ECF No. 18) is VACATED. Plaintiffs have sixty (60)

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days from the date this Order is filed within which to serve Defendants

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Freestand Financial and Bank United F.S.B.

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Further,

the

Status

(Pretrial

Scheduling)

Conference

is

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continued to September 19, 2011 at 9:00 a.m.

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report shall be filed no later than fourteen (14) days prior the

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Conference.

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Dated:

A further joint status

May 9, 2011

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GARLAND E. BURRELL, JR.
United States District Judge

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