Marzette v. Provident Savings Bank, F.S.B. et al

Filing 26

ORDER to SHOW CAUSE signed by Judge John A. Mendez on 4/30/2012 ORDERING Plaintiff is hereby ORDERED TO SHOW CAUSE in writing, not to exceed 5 pages, why this action should not be dismissed as to Defendant E*Trade for Plaintiff's failure to timely serve E*Trade. Plaintiff's response to this Court's order should be filed no later than 5:00 PM on 5/10/2012.(Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PAULINE MARZETTE, an individual, )
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Plaintiff,
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v.
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WELLS FARGO; AMERICAN SERVICING )
COMPANY; NDEX WEST, LLC; E*TRADE )
BANK; and DOES 1-20, inclusive, )
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Defendants.
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Case No. 2:11-CV-2089-JAM-CKD
ORDER TO SHOW CAUSE REGARDING
DISMISSAL OF CLAIMS AGAINST
PROVIDENT SAVINGS BANK, F.S.B.
AND E*TRADE BANK

On August 8, 2011, this action was removed from El Dorado

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Superior Court, and on December 18, 2011, Plaintiff Pauline

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Marzette (“Plaintiff”) filed her First Amended Complaint (Doc.

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#18).

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America’s Servicing Company, and NDEX West, LLC, moved to dismiss

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the claims asserted against them by Plaintiff (Docs. #19, 21).

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This motion was granted, with prejudice, following Plaintiff’s

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failure to respond to it.

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On December 21, 2011, Defendants Wells Fargo, N.A.,

Doc. #24.

To date, E*Trade, the only remaining named Defendant, has not
appeared in this action, and Plaintiff has not lodged a proof of
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service with this Court as to Defendant E*Trade.

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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 plaintiff’s filing of his or her complaint, unless a

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plaintiff can demonstrate good cause for his or her failure to

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serve the defendant.

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in limited circumstances, and inadvertent error or ignorance of the

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governing rules alone will not excuse a litigant’s failure to

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effect timely service.”

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

Good cause “applies only

Hamilton v. Endell, 981 F.2d 1062, 1065

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

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other grounds); see also Glaser v. Bell Gardens, 28 F.3d 105 (9th

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Cir. 1994).

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It has been well beyond 120 days since Plaintiff’s initial

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complaint was filed.

Accordingly, Plaintiff is hereby ordered to

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show cause in writing, not to exceed five (5) pages, why this

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action should not be dismissed as to Defendant E*Trade for

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Plaintiff’s failure to timely serve E*Trade.

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to this Court’s order should be filed no later than 5:00 pm on May

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10, 2012.

Plaintiff’s response

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IT IS SO ORDERED.

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Dated: April 30, 2012

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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