Sanders v. Gurnett et al

Filing 36

ORDER of dismissal (crblc2, COURT STAFF) (Filed on 5/11/2009)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

JUANITA R. SANDERS, Plaintiff, v. DAVID GURNETT, Defendant. /

No. C 08-04530 CRB ORDER OF DISMISSAL

Plaintiff Juanita R. Sanders filed her pro se complaint on September 19, 2008. Plaintiff alleges that Defendants defrauded her through a pattern of racketeering activity. Plaintiff's complaint names five Defendants: (1) David Gurnett of United Mortgage Group, Inc.; (2) Johol Parminder of United Mortgage Group, Inc.; (3) Option One Mortgage Corporation; (4) CT Corporation System; and (5) Wells Fargo Bank. Plaintiff alleges that Defendants took advantage of her as an elderly woman in financing her mortgage. All Defendants except for David Gurnett filed motions to dismiss. Plaintiff requested an extension of time to respond to Defendants' motions so that she could find counsel. The Court granted the request, and continued the hearing on the motions for approximately sixty days. See Nov. 18, 2008 Order. In January 2009, Plaintiff again requested an extension of time to respond. The Court granted a final extension of thirty days. See Jan. 28, 2009 Order. Plaintiff never filed an opposition to Defendants' motions. On March 23, 2009 the Court

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granted Defendants' motions to dismiss, holding that Plaintiff had failed to state a federal claim. See Mar. 23, 2009 Order. The remaining Defendant in the case is David Gurnett. On December 5, 2008, service was returned unexecuted as to Mr. Gurnett. On April 7, 2009, the Court issued an Order to Show Cause, directing Plaintiff to file a declaration by May 8, 2009 explaining why the claim against Mr. Gurnett should not be dismissed. See Apr. 7, 2009 Order. On May 7, Plaintiff filed an ex parte request for an extension of time to respond to the Order to Show Cause. Plaintiff's request is hereby DENIED. Pursuant to Federal Rule of Civil Procedure 4(m), a plaintiff has 120 days to serve a complaint on a defendant. Here, far more time has passed since Plaintiff filed her complaint in September 2008, and Defendant David Gurnett has still not been served. Under Rule 4(m), the Court "must dismiss the action without prejudice" against Mr. Gurnett. The Court has been lenient in granting Plaintiff additional time throughout the course of these proceedings, and Plaintiff has not shown good cause for the failure of service. Accordingly, Plaintiff's claims against David Gurnett are hereby DISMISSED without prejudice. IT IS SO ORDERED.

Dated: May 11, 2009

CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

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