Hollowell v. Select Portfolio Servicing Center
ORDER EXTENDING DEADLINE TO SERVE DEFENDANT MERS; AFFORDING PLAINTIFF LEAVE TO FILE THIRD AMENDED COMPLAINT FOR LIMITED PURPOSE; CONTINUING CASE MANAGEMENT CONFERENCE. The Court affords plaintiff leave to file, no later than August 5, 2011, a Third A mended Complaint, for the limited purpose of stating therein any claim(s) against MERS, and extends to September 3, 2011, the time to serve the summons and said pleading on MERS; proof of such service must be filed no later than September 10, 2011. T he Case Management Conference is continued from August 26, 2011 to October 7, 2011, at 10:30 a.m. A Joint Case Management Statement shall be filed no later than September 30, 2011. Signed by Judge Maxine M. Chesney on July 19, 2011. (mmclc1, COURT STAFF) (Filed on 7/19/2011)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
For the Northern District of California
United States District Court
No. 10-1658 MMC
ORDER EXTENDING DEADLINE TO
SERVE DEFENDANT MERS;
AFFORDING PLAINTIFF LEAVE TO FILE
THIRD AMENDED COMPLAINT FOR
LIMITED PURPOSE; CONTINUING
CASE MANAGEMENT CONFERENCE
ALLIANCE BANCORP, INC., et al.,
Before the Court is plaintiff’s Response, filed July 1, 2011, to the Court’s June 22,
2011 order directing plaintiff to show cause why her claims against defendants Mortgage
Electronic Registration System, Inc. (“MERS”) and Quality Loan Services Corporation
(“Quality”) should not be dismissed for failure to serve within the time required by Rule 4(m)
of the Federal Rules of Civil Procedure. Having read and considered plaintiff’s response,
the Court rules as follows.
Plaintiff has shown the failure to timely serve MERS was the result of excusable
neglect, and, consequently, the Court will afford plaintiff an extension of time to serve
MERS.1 The Court notes, however, that plaintiff has not named MERS as a defendant to
On July 15, 2011, Quality appeared by filing a document titled “Declaration of
Nonmonetary Status,” indicating therein its belief that it has been named solely in its
capacity as a trustee. Quality has not, in such filing or otherwise, challenged the timeliness
of plaintiff’s service. Accordingly, the Court will take no further action with respect to
plaintiff’s service of Quality.
any of the eleven causes of action alleged in the operative pleading, specifically, the
Second Amended Complaint (“SAC”). Consequently, it would be futile to serve the SAC on
MERS, because said pleading, on its face, fails to state any claim for relief against MERS.
Under such circumstances, the Court hereby affords plaintiff leave to file, no later
than August 5, 2011, a Third Amended Complaint, for the limited purpose of stating therein,
if she can, any claim(s) against MERS, and extends to September 3, 2011, the time to
serve the summons and said pleading on MERS; proof of such service must be filed no
later than September 10, 2011.
If plaintiff fails to file a Third Amended Complaint on or before August 5, 2011,
and/or fails to timely file proof of service of a Third Amended Complaint on MERS, the
Court will dismiss the instant action as against MERS.
Finally, in light of the above, the Case Management Conference is hereby
CONTINUED from August 26, 2011 to October 7, 2011, at 10:30 a.m. A Joint Case
Management Statement shall be filed no later than September 30, 2011.
IT IS SO ORDERED.
Dated: July 19, 2011
MAXINE M. CHESNEY
United States District Judge
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