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)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
UNITED STATES DISTRICT COURT
16
EASTERN DISTRICT OF CALIFORNIA
17
18
19
20
21
22
23
24
25
26
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,
27
requiring Plaintiffs Julia Carlon and Christine Carlon
28
(“Plaintiffs”) to show good cause for their failure to timely serve
1
1
Defendant Taylor, Bean & Whitaker Mortgage Co. (“TBWMC”) in order
2
to avoid dismissal of their claims against TBWMC (Doc. #17).
3
response, Plaintiffs filed an Ex Parte Application for an Order for
4
Publication of Summons (Doc. #18) and a Response to this Court‟s
5
Order to Show Cause (Docs. #19-21).
6
below, Plaintiffs‟ Application is DENIED and Plaintiffs‟ claims
7
against TBWMC are dismissed because Plaintiffs have not shown good
8
cause for their failure to effect service on TBWMC.
In
For the reasons set forth
9
10
I.
OPINION
11
A.
12
Pursuant to Federal Rule of Civil Procedure 4(m), the Court
13
must dismiss an action if a defendant has not been served within
14
120 days of a plaintiff‟s filing of his or her complaint, unless
15
the plaintiff can demonstrate good cause for his or her failure to
16
serve the defendant.
17
Legal Standard
FED. R. CIV. P. 4(m).
The Court must determine whether good cause “has been shown on
18
a case by case basis.”
19
2001) (citing Cartage Pac., Inc. v. Waldner (In re Waldner), 183
20
B.R. 879, 882 (9th Cir. BAP 1995)).
21
limited circumstances . . . .” Hamilton v. Endell, 981 F.2d 1062,
22
1065 (9th Cir. 1992) (discussing former subdivision 4(j))
23
(overruled on other grounds).
24
excusable neglect.”
25
Cir. 1991).
26
27
28
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
2
1
prejudiced if his complaint were dismissed.”
2
In re Sheehan, 253 F.3d at 512 (quoting Boudette v. Barnette, 923
3
F.2d 754, 756 (9th Cir. 1991)) (other citations omitted).
4
The Court also has broad “discretion under Rule 4(m), absent a
5
showing of good cause, to extend the time of service or to dismiss
6
the action without prejudice.”
7
(9th Cir. 2001) (citing Petrucelli v. Bohringer & Ratzinger, GMBH,
8
46 F.3d 1298, 1305 (3d Cir. 1995)).
9
10
B.
In re Sheehan, 253 F.3d 507, 513
Plaintiffs‟ Ex Parte Application
Plaintiffs move this Court for an Order for Publication of
11
Summons pursuant to the California Code of Civil Procedure section
12
415.50.
13
erroneously argue that because the Federal Rules of Civil Procedure
14
authorize service of process in accordance with state law,
15
Plaintiffs may move this Court for an order under the California
16
Code of Civil Procedure.
17
binding authority, or any federal law for that matter, upon which
18
this Court can properly grant Plaintiffs‟ application and order a
19
publication of summons.
20
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‟
21
C.
Plaintiffs‟ Response to the Order to Show Cause
22
Plaintiffs argue that their unsuccessful attempts to effect
23
service on TBWMC, coupled with their application for service by
24
publication under the California Code of Civil Procedure, provide a
25
basis for this Court to not dismiss their claims against TBWMC.
26
Doc. #19 at pg. 1-3.
27
orchestrator and central culprit of the wrongdoings suffered by the
28
Plaintiffs,” and therefore, this Court should not dismiss TBWMC
Plaintiffs further argue that TBWMC “is the
3
1
from this case.
2
do not cite any case law, or provide a legal standard,
3
demonstrating that these things satisfy the good cause requirement
4
under federal law, the Court will evaluate whether Plaintiffs have
5
sufficiently demonstrated good cause to avoid dismissal of their
6
claims against TBWMC.
7
See id.
Notwithstanding the fact that Plaintiffs
Although Plaintiffs made four attempts to serve TBWMC, three
8
of these attempts were directed at CT Corp.
9
Exhibits A, B.
See Docs. #19, 20, and
On January 28, 2011, when Plaintiffs first
10
attempted to serve TBWMC, they were informed that CT Corp. was not
11
the agent for service and CT Corp. did not have a listing for
12
TBWMC.
13
serve CT Corp., on February 22, 2011, and March 23, 2011, are
14
irrelevant to this Court‟s good cause inquiry because Plaintiffs
15
were aware that CT Corp. was not the proper agent for service, yet
16
continued to attempt service on it.
17
Plaintiffs also unsuccessfully attempted service by mail on
18
Patricia Smaldone, a registered agent for TBWMC.
19
2.
20
attempts to locate or serve Ms. Smaldone, or the reason why the
21
service by mail was unsuccessful.
22
from the two sentences regarding Ms. Smaldone in the Plaintiffs‟
23
response whether she has not been served due to the Plaintiffs‟
24
“excusable neglect.”
25
Court cannot find that Plaintiffs two legitimate attempts to serve
26
TBWMC, one on January 28, 2011, through CT Corp., and one on March
27
23, 2011, through Ms. Smaldone, satisfy the good cause requirement
28
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
4
1
This Court also finds that Plaintiffs have not made any
2
showing that the elements set forth in Boudette are met in this
3
case, and therefore, Plaintiffs have failed to demonstrate good
4
cause.
5
(quoting Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991))
6
(other citations omitted).
7
that: (a) TBWMC received actual notice of the lawsuit; (b) TBWMC
8
would suffer no prejudice; and (c) Plaintiffs would be severely
9
prejudiced if their complaint were dismissed.
10
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
11
to serve by publication somehow satisfies the requisite good cause
12
showing is unpersuasive, given that Plaintiffs‟ motion was made
13
under the California Code of Procedure and not the Federal Rules of
14
Civil Procedure.
15
Accordingly, because Plaintiffs have not shown good cause for
16
their failure to serve TBWMC within the 120 day period under Rule
17
4, their claims against TBWMC are dismissed.
18
19
20
II.
ORDER
For the reasons set forth above, Plaintiffs‟ Ex Parte
21
Application for an Order for Publication of Summons is DENIED, and
22
Plaintiffs‟ claims against Defendant Taylor, Bean & Whitaker
23
Mortgage Company are DISMISSED WITHOUT PREJUDICE.
24
25
IT IS SO ORDERED.
26
Dated: July 27, 2011
____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE
27
28
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?