Carlon et al v. Taylor, Bean and Whitaker Mortgage Corporation, et al

Filing 22

ORDER signed by Judge John A. Mendez on 7/27/11 ORDERING that Plaintiff's Ex Parte Application for an order for Publication of Summons 18 is DENIED and Plaintiffs' claims against Defendant Taylor, Bean and Whitaker Mortgage Company are DISMISSED WITHOUT PREJUDICE. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JULIA M. CARLON, CHRISTINE M.
CARLON,

)
)
)
Plaintiffs,
)
)
v.
)
)
TAYLOR, BEAN & WHITAKER MORTGAGE )
COMPANY, CENTRAL LOAN
)
ADMINISTRATION AND REPORTING,
)
OCWEN LOAN SERVICE, LLC, and
)
DOES 1 through 100,
)
)
Defendants.
)

Case No. 2:11-CV-00499-JAM-GGH
ORDER DENYING PLAINTIFFS‟ EX
PARTE APPLICATION AND
DISMISSING PLAINTIFFS‟ CLAIMS
AGAINST TAYLOR, BEAN &
WHITAKER

On July 11, 2011, this Court issued an Order to Show Cause,

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requiring Plaintiffs Julia Carlon and Christine Carlon

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(“Plaintiffs”) to show good cause for their failure to timely serve
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Defendant Taylor, Bean & Whitaker Mortgage Co. (“TBWMC”) in order

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to avoid dismissal of their claims against TBWMC (Doc. #17).

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response, Plaintiffs filed an Ex Parte Application for an Order for

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Publication of Summons (Doc. #18) and a Response to this Court‟s

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Order to Show Cause (Docs. #19-21).

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below, Plaintiffs‟ Application is DENIED and Plaintiffs‟ claims

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against TBWMC are dismissed because Plaintiffs have not shown good

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cause for their failure to effect service on TBWMC.

In

For the reasons set forth

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I.

OPINION

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A.

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Pursuant to Federal Rule of Civil Procedure 4(m), the Court

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must dismiss an action if a defendant has not been served within

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120 days of a plaintiff‟s filing of his or her complaint, unless

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the plaintiff can demonstrate good cause for his or her failure to

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serve the defendant.

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Legal Standard

FED. R. CIV. P. 4(m).

The Court must determine whether good cause “has been shown on

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a case by case basis.”

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2001) (citing Cartage Pac., Inc. v. Waldner (In re Waldner), 183

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B.R. 879, 882 (9th Cir. BAP 1995)).

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limited circumstances . . . .” Hamilton v. Endell, 981 F.2d 1062,

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1065 (9th Cir. 1992) (discussing former subdivision 4(j))

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(overruled on other grounds).

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excusable neglect.”

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Cir. 1991).

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In re Sheehan, 253 F.3d 507, 512 (9th Cir.

Good cause “applies only in

“At a minimum, „good cause‟ means

Boudette v. Barnette, 923 F.2d 754, 756 (9th

However, in the Ninth Circuit:

a plaintiff may be required to show the following
factors in order to bring the excuse to the level of
good cause: “(a) the party to be served received actual
notice of the lawsuit; (b) the defendant would suffer no
prejudice;
and
(c)
plaintiff
would
be
severely
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prejudiced if his complaint were dismissed.”

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In re Sheehan, 253 F.3d at 512 (quoting Boudette v. Barnette, 923

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F.2d 754, 756 (9th Cir. 1991)) (other citations omitted).

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The Court also has broad “discretion under Rule 4(m), absent a

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showing of good cause, to extend the time of service or to dismiss

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the action without prejudice.”

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(9th Cir. 2001) (citing Petrucelli v. Bohringer & Ratzinger, GMBH,

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46 F.3d 1298, 1305 (3d Cir. 1995)).

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B.

In re Sheehan, 253 F.3d 507, 513

Plaintiffs‟ Ex Parte Application

Plaintiffs move this Court for an Order for Publication of

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Summons pursuant to the California Code of Civil Procedure section

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415.50.

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erroneously argue that because the Federal Rules of Civil Procedure

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authorize service of process in accordance with state law,

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Plaintiffs may move this Court for an order under the California

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Code of Civil Procedure.

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binding authority, or any federal law for that matter, upon which

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this Court can properly grant Plaintiffs‟ application and order a

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publication of summons.

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application is improper and is, therefore, denied.

Doc. #18, pg. 1-2.

In their motion, Plaintiffs

See id.

Plaintiffs have not provided any

For this reason alone, Plaintiffs‟

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C.

Plaintiffs‟ Response to the Order to Show Cause

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Plaintiffs argue that their unsuccessful attempts to effect

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service on TBWMC, coupled with their application for service by

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publication under the California Code of Civil Procedure, provide a

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basis for this Court to not dismiss their claims against TBWMC.

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Doc. #19 at pg. 1-3.

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orchestrator and central culprit of the wrongdoings suffered by the

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Plaintiffs,” and therefore, this Court should not dismiss TBWMC

Plaintiffs further argue that TBWMC “is the

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from this case.

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do not cite any case law, or provide a legal standard,

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demonstrating that these things satisfy the good cause requirement

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under federal law, the Court will evaluate whether Plaintiffs have

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sufficiently demonstrated good cause to avoid dismissal of their

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claims against TBWMC.

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See id.

Notwithstanding the fact that Plaintiffs

Although Plaintiffs made four attempts to serve TBWMC, three

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of these attempts were directed at CT Corp.

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Exhibits A, B.

See Docs. #19, 20, and

On January 28, 2011, when Plaintiffs first

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attempted to serve TBWMC, they were informed that CT Corp. was not

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the agent for service and CT Corp. did not have a listing for

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TBWMC.

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serve CT Corp., on February 22, 2011, and March 23, 2011, are

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irrelevant to this Court‟s good cause inquiry because Plaintiffs

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were aware that CT Corp. was not the proper agent for service, yet

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continued to attempt service on it.

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Plaintiffs also unsuccessfully attempted service by mail on

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Patricia Smaldone, a registered agent for TBWMC.

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2.

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attempts to locate or serve Ms. Smaldone, or the reason why the

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service by mail was unsuccessful.

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from the two sentences regarding Ms. Smaldone in the Plaintiffs‟

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response whether she has not been served due to the Plaintiffs‟

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“excusable neglect.”

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Court cannot find that Plaintiffs two legitimate attempts to serve

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TBWMC, one on January 28, 2011, through CT Corp., and one on March

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23, 2011, through Ms. Smaldone, satisfy the good cause requirement

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to maintain Plaintiffs case against TBWMC.

Id.

Thus, the two subsequent attempts by Plaintiffs to

See id.

On March 23, 2011,

Doc. #19 at pg.

However, Plaintiffs have not informed the Court of any other

See id.

This Court cannot glean

Without providing any justification, this

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This Court also finds that Plaintiffs have not made any

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showing that the elements set forth in Boudette are met in this

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case, and therefore, Plaintiffs have failed to demonstrate good

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cause.

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(quoting Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991))

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(other citations omitted).

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that: (a) TBWMC received actual notice of the lawsuit; (b) TBWMC

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would suffer no prejudice; and (c) Plaintiffs would be severely

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prejudiced if their complaint were dismissed.

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See In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001)

Indeed, Plaintiffs have not argued

Cf. id.

Finally, Plaintiffs argument that its application for an order

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to serve by publication somehow satisfies the requisite good cause

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showing is unpersuasive, given that Plaintiffs‟ motion was made

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under the California Code of Procedure and not the Federal Rules of

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Civil Procedure.

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Accordingly, because Plaintiffs have not shown good cause for

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their failure to serve TBWMC within the 120 day period under Rule

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4, their claims against TBWMC are dismissed.

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II.

ORDER

For the reasons set forth above, Plaintiffs‟ Ex Parte

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Application for an Order for Publication of Summons is DENIED, and

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Plaintiffs‟ claims against Defendant Taylor, Bean & Whitaker

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Mortgage Company are DISMISSED WITHOUT PREJUDICE.

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IT IS SO ORDERED.

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Dated: July 27, 2011

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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