Francisco et al v. Greenpoint Mortgage Funding, Inc. et al

Filing 16

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 4/15/11 recommending that this action be dismissed without prejudice re 1 Complaint filed by Janeth Francisco, Arnel Francisco. Objections to F&R due w/in 21 days. (Matson, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARNEL FRANCISCO and
JANETH FRANCISCO,

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Plaintiffs,

No. CIV S-10-2594 JAM DAD PS

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v.
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GREENPOINT MORTGAGE
FUNDING, INC.; OLD REPUBLIC
TITLE COMPANY; MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC.; LANDMARK
HOMES REALTY,
FINDINGS AND RECOMMENDATIONS

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Defendants.
/

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On December 7, 2010, plaintiffs, who are proceeding pro se in this matter, filed a

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notice of voluntary dismissal of defendants Old Republic Title Company and Landmark Homes

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Realty. By order filed December 15, 2010, the court honored plaintiffs’ dismissal of the two

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specified defendants and denied the defendants’ pending motions to dismiss as moot. By the

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same order, the court ordered as follows with regard to service of the two remaining defendants:

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On or before January 25, 2011, plaintiffs shall file a return
of service that shows service of a summons and complaint on
defendants Greenpoint Mortgage Funding, Inc. and Mortgage
Electronic Registration Systems, Inc. in a manner authorized by
Federal Rule of Civil Procedure 4(h), or plaintiffs shall file a

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declaration showing good cause for failing to effect proper service
on these defendants in a timely manner. See Fed. R. Civ. P. 4(m).

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Order filed Dec. 15, 2010 (Doc. No. 15), at 2.

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By order filed on November 22, 2010, the court had previously explained to

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plaintiffs that the return of service filed on October 4, 2010 (Doc. No. 5) reflects that their

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summons and complaint were served on defendants Greenpoint Mortgage Funding, Inc. and

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Mortgage Electronic Registration Systems, Inc. by regular mail. See Order filed Nov. 22, 2010

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(Doc. No. 13) at 2. Federal Rule of Civil Procedure 4 does not authorize service of a summons

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and complaint by regular mail. Plaintiffs were cautioned that Rule 4(m) “provides that an action

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may be dismissed against any defendant on whom service of process has not been completed

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within 120 days from the date the complaint was filed.” Id.

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The 120-day period after plaintiffs’ complaint was filed began to run on

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September 25, 2010, and expired on January 25, 2011. Plaintiffs have not responded in any way

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to the court’s December 15, 2010 order requiring them to file, on or before January 25, 2011, a

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return of service that shows service of process on defendants Greenpoint Mortgage Funding, Inc.

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and Mortgage Electronic Registration Systems, Inc. in a manner authorized by Federal Rule of

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Civil Procedure 4(h) or, in the alternative, to file a declaration showing good cause for failing to

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effect proper service on these two defendants in a timely manner.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed
without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.

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These findings and recommendations will be submitted to the United States

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District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

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twenty-one (21) days after being served with these findings and recommendations, plaintiffs may

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file written objections with the court. A document containing objections should be titled

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“Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiffs are advised that

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failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: April 15, 2011.

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DAD:kw
Ddad1\orders.prose\francisco2594.rule4m.f&r

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