Zinzuwadia v. Mortgage Electronic Registration Systems, Inc. et al

Filing 10

ORDER signed by Magistrate Judge Kendall J. Newman on 3/6/2013 DENYING, at this time, defendant American's 8 Motion to Dismiss First Amended Complaint. (Marciel, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ASHIT ZINZUWADIA,

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Plaintiff,

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No. 2:12-cv-02281-KJM-KJN

vs.
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
et al.,
Defendants.

ORDER
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On September 6, 2012, plaintiff Ashit Zinzuwadia (“plaintiff”) filed a Complaint

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(Compl., Dkt. No. 1) and an Application to Proceed In Forma Pauperis (the “IFP Application”)

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(Dkt. No. 2). Following an initial screening, the undersigned dismissed plaintiff’s original

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pleading with leave to amend. (Order, Dkt. No. 6.) Plaintiff filed a First Amended Complaint on

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February 11, 2013. (First Am. Compl., Dkt. No. 7.)

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On February 25, 2013, defendant American Mortgage Network, Inc. (“American”)

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filed a Motion to Dismiss the First Amended Complaint. (Motion, Dkt. No. 8.) American set the

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motion to be heard on March 28, 2013. (Id.) However, the First Amended Complaint has not yet

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been screened pursuant to 28 U.S.C. § 1915. Neither American nor any of the four other named
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defendants have yet been served with process; if such service was effectuated, the court’s

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electronic docket does not reflect it.

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Given plaintiff’s status as a litigant proceeding without counsel and in forma

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pauperis, the amended pleading in this case needs to be screened by the undersigned pursuant to

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28 U.S.C. § 1915. Thereafter, should the amended pleading surpass the screening phase, the

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United States Marshal will be ordered to effectuate service of that pleading upon the defendants.

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After such service occurs, the defendants may respond by filing responsive pleadings or motions

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to dismiss. Until that time, however, American’s motion is premature.

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For the reasons stated above, IT IS HEREBY ORDERED that:

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American’s Motion to Dismiss (Motion, Dkt. No. 8) is denied without prejudice

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at this time, and the hearing date currently set in connection with that motion is hereby

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VACATED. If the undersigned orders that the amended complaint be served after screening it

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pursuant to 28 U.S.C. § 1915, American may re-file its motion to dismiss after being served with

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process.

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IT IS SO ORDERED.
DATED: March 6, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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