Johnson v. Wachovia Bank FSB et al

Filing 46

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/10/12 DISCHARGING 44 Order to Show Cause and DISMISSING Wachovia Bank FSB, Wachovia Mortgage Corporation, Wells Fargo Central Bank, ETS Services, LLC and ND Ex West, LLC. No later than 5/11/12, plaintiff shall serve process on defendant WellsFargo Bank, N.A. in compliance with Federal Rule of Civil Procedure 4 and shall file written proof of said service with the court. (Meuleman, 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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LAMONT JOHNSON,

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Plaintiff,

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No. CIV S-10-2839 GEB CKD PS

vs.
WACHOVIA BANK FSB, et al.,

ORDER

Defendants.

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Plaintiff is proceeding in this action pro se. On March 26, 2012, plaintiff was

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ordered to show cause in writing why this action should not be dismissed for failure to comply

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with the court’s orders and for failure to timely serve process. Plaintiff has filed a response to the

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order to show cause.

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Plaintiff contends he did not timely serve process because of the pendency of

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certain class actions. This action has been pending since May 11, 2010. Although plaintiff

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contends defendant Wells Fargo was properly served in this matter, there is no evidence

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submitted in support of plaintiff’s contention. Plaintiff will therefore be granted additional time

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to complete service of process in compliance with Federal Rule of Civil Procedure 4.

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In the response to the order to show cause, plaintiff asserts he intends to dismiss
all defendants except for defendant Wells Fargo. The court will construe plaintiff’s filing as a
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request to voluntarily dismiss the remaining defendants under Federal Rule of Civil Procedure

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41(a).

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Plaintiff also asserts that he intends to amend the complaint. An amended

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complaint has already been filed in this action. See dkt. no. 15. As such, leave of court is

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required before plaintiff may file an amended complaint. See Fed. R. Civ. P. 15. Because

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defendant has not yet been served and plaintiff has not submitted a proposed amended complaint,

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the court cannot determine at this time whether leave to amend should be granted. Plaintiff is

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advised that any motion for leave to amend the complaint must be properly noticed for hearing,

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must be accompanied by a proposed amended complaint, and said motion may not be filed until

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defendant has been served with summons in this action.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The March 26, 2012 order to show cause is discharged.

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2. All defendants except defendant Wells Fargo Bank, N.A. are dismissed under

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Federal Rule of Civil Procedure 41(a).

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3. No later than May 11, 2012, plaintiff shall serve process on defendant Wells

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Fargo Bank, N.A. in compliance with Federal Rule of Civil Procedure 4 and shall file written

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proof of said service with the court.

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Dated: April 10, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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johnson-wachovia.osc.dis

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