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

Filing 5

ORDER signed by Magistrate Judge Kendall J. Newman on 10/17/2012 DENYING, without prejudice, 3 Motion to Dismiss; VACATING the Motion Hearing as to 3 Motion to Dismiss set for 11/1/2012 at 10:00 AM. (Michel, G)

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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.,

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Defendants.

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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).

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Defendant American Mortgage Network, Inc. (“American”) has filed a Motion to

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Dismiss the Complaint. (Motion, Dkt. No. 3.) American set the motion to be heard on

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November 1, 2011. (Id.) However, the Complaint has not yet been screened pursuant to 28

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U.S.C. § 1915. Similarly, no determination has yet been made with respect to plaintiff’s IFP

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Application. Neither American nor any of the four other named defendants have yet been served

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with process; if such service was effectuated, the court’s 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 pleading in this case first needs to be screened by the undersigned pursuant to 28

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U.S.C. § 1915. Thereafter, should the pleading surpass the screening phase, the United States

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Marshall will be ordered to effectuate service of that pleading upon the defendants. After such

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service occurs, the defendants may respond by filing responsive pleadings or motions to dismiss.

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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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Accordingly, the undersigned denies American’s Motion to Dismiss (Motion, Dkt.

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No. 3) without prejudice at this time, and vacates the hearing date currently set in connection

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with that motion. If the undersigned orders that the 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: October 17, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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