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

Filing 8

ORDER signed by Magistrate Judge Dale A. Drozd on 7/16/12 GRANTING plaintiffs 30 days from the date of this order to either file proof of service of the original complaint on each defendant or file and serve an amended complaint on each defendant and file with the court proof of service of the amended complaint on each defendant; SETTING Status Conference for 10/5/2012 at 10:00 AM in Courtroom 27 (DAD) before Magistrate Judge Dale A. Drozd. Within 14 days after plaintiffs are served with this or der, plaintiffs shall serve upon each defendant 1 copy of this order, as well as a copy of the Notice of Availability of a Magistrate Judge and the related form that were served on plaintiffs by the Clerk on 2/28/12; within 5 days after serving the required copies on the defendants, plaintiffs shall file a certificate of service indicating the date and manner of service of the copies on each defendant; Status Report Filing Deadline: 9/21/2012. (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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ARNEL FRANCISCO, et al.,

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Plaintiffs,

No. 2:12-cv-0522 LKK DAD PS

vs.
GREENPOINT MORTGAGE FUNDING
INC., et al.,

ORDER

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Defendants

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/

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This matter came before the court on July 13, 2012, for Status (Pretrial

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Scheduling) Conference. Plaintiff Arnel Francisco, who is proceeding pro se in this action,

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appeared on his own behalf. No appearance was made by or on behalf of plaintiff Janeth

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Francisco or any defendant.1

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At the July 13, 2012 hearing the undersigned advised plaintiff Arnel Francisco

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that plaintiffs have filed no evidence that service of the summons and complaint was effected on

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any defendant and also noted that no defendant has appeared in the action. Plaintiff Arnel

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Francisco represented to the court that the plaintiffs had paid a process server to effect service on

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Plaintiff Arnel Francisco stated at the hearing that plaintiff Janeth Francisco was ill and
could not appear.
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the defendants, believed that the process server had served each defendant and that each

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defendant would appear at the July 13, 2012 hearing. Moreover, plaintiff Arnel Francisco

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represented that the plaintiffs were in discussions with an attorney who they hoped to retain to

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represent them in this matter. Finally, plaintiff Arnel Francisco reported that if counsel was

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retained, he wished to file an amended complaint on behalf of the plaintiffs.

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Federal Rule of Civil Procedure 4(m) requires a plaintiff to serve a defendant

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within 120 days after it files the complaint. A court must dismiss a case without prejudice if a

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plaintiff has not complied with this provision unless the plaintiff shows good cause for its failure

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to serve a defendant. Fed. R. Civ. P. 4(m). If good cause appears, the court must extend the time

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for service for an appropriate period. Id. Even without good cause, “[c]ourts have discretion

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under Rule 4(m) . . . to extend the time for service.” In re Sheehan, 253 F.3d 507, 513 (9th Cir.

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2001); see also Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (“District courts have

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broad discretion to extend time for service under Rule 4(m).”). In this regard, “if good cause is

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not established, the district court may extend time for service upon a showing of excusable

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neglect.” Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009).

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Here, there appears to be no prejudice to defendants in granting plaintiffs a brief

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extension of time in which to serve defendants. Moreover, given the reason stated for plaintiffs’

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failure to effect service, and the possibility that plaintiffs will retain counsel in the near future, it

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is likely that plaintiffs will serve defendants if granted a short extension of time. Finally, it

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appears that the pro se plaintiffs failure to serve the defendants was not the result of inexcusable

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neglect, since they reportedly employed a process server to serve the defendants but the process

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server nevertheless failed to properly serve any defendant. Plaintiffs will therefore be granted a

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brief extension of time in which to effect service.

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Accordingly, IT IS ORDERED that:

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1. Plaintiffs are granted thirty days from the date of this order to either file proof

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of service of the original complaint on each defendant or file and serve an amended complaint on
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each defendant and file with the court proof of service of the amended complaint on each

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defendant;

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2. A Status (Pretrial Scheduling) Conference is set for Friday, October 5, 2012,

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at 10:00 a.m. at the United States District Court, 501 I Street, Sacramento, California, in

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Courtroom No. 27 before the undersigned;

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3. Within fourteen (14) days after plaintiffs are served with this order, plaintiffs

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shall serve upon each defendant one copy of this order, as well as a copy of the Notice of

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Availability of a Magistrate Judge and the related form that were served on plaintiffs by the Clerk

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on February 28, 2012; within five (5) days after serving the required copies on the defendants,

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plaintiffs shall file a certificate of service indicating the date and manner of service of the copies

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on each defendant;

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4. Any party may appear at the Status (Pretrial Scheduling) Conference

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telephonically if the party pre-arranges such appearance by contacting Pete Buzo, the courtroom

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deputy of the undersigned magistrate judge, at [phone] at least 48 hours before the Status

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(Pretrial Scheduling) Conference. A land line telephone number must be provided;

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5. Plaintiffs shall file and serve a status report on or before September 21, 2012,

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2012, and defendants shall file and serve status reports on or before September 28, 2012. Each

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party’s status report shall address all of the following matters:

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a.

Progress of service of process;

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b.

Possible joinder of additional parties;

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c.

Possible amendment of the pleadings;

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d.

Jurisdiction and venue;

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e.

Anticipated motions and the scheduling thereof;

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f.

Anticipated discovery and the scheduling thereof,
including disclosure of expert witnesses;

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Future proceedings, including the setting of
appropriate cut-off dates for discovery and for law

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and motion, and the scheduling of a final pretrial
conference and trial;

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h.
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i.

Modification of standard pretrial procedures
specified by the rules due to the relative simplicity
or complexity of the action;
Whether the case is related to any other case,
including matters in bankruptcy;

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j.

Whether the parties will stipulate to the magistrate
judge assigned to this matter acting as settlement
judge, waiving any disqualification by virtue of his
so acting, or whether they prefer to have a
Settlement Conference before another magistrate
judge;

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Whether the parties intend to consent to proceed before a
United States Magistrate Judge; and

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Any other matters that may aid in the just and
expeditious disposition of this action.

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6. Plaintiffs are again advised that failure to file a timely status report, or failure

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to appear at the status conference either in person or telephonically, may result in a

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recommendation that this action be dismissed for lack of prosecution and as a sanction for failure

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to comply with court orders and applicable rules. See Local Rules 110 and 183; and

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7. Plaintiffs are hereby cautioned that if service of the summons and original

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complaint, or any amended complaint filed by plaintiffs, is not accomplished on a defendant

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within 30 days of the date of this order, the undersigned will recommend that this matter be

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dismissed.

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DATED: July 16, 2012.

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DAD:6
Ddad1\orders.pro se\francisco0522.ossc2

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