Hollowell v. Select Portfolio Servicing Center

Filing 40

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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

For the Northern District of California

United States District Court

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CHRISTIE HOLLOWELL,
Plaintiff,

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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

v.
ALLIANCE BANCORP, INC., et al.,
Defendants.

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Before the Court is plaintiff’s Response, filed July 1, 2011, to the Court’s June 22,

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2011 order directing plaintiff to show cause why her claims against defendants Mortgage

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Electronic Registration System, Inc. (“MERS”) and Quality Loan Services Corporation

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(“Quality”) should not be dismissed for failure to serve within the time required by Rule 4(m)

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of the Federal Rules of Civil Procedure. Having read and considered plaintiff’s response,

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the Court rules as follows.

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Plaintiff has shown the failure to timely serve MERS was the result of excusable

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neglect, and, consequently, the Court will afford plaintiff an extension of time to serve

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MERS.1 The Court notes, however, that plaintiff has not named MERS as a defendant to

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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.

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any of the eleven causes of action alleged in the operative pleading, specifically, the

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Second Amended Complaint (“SAC”). Consequently, it would be futile to serve the SAC on

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MERS, because said pleading, on its face, fails to state any claim for relief against MERS.

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Under such circumstances, the Court hereby affords plaintiff leave to file, no later

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than August 5, 2011, a Third Amended Complaint, for the limited purpose of stating therein,

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if she can, any claim(s) against MERS, and extends to September 3, 2011, the time to

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serve the summons and said pleading on MERS; proof of such service must be filed no

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later than September 10, 2011.

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If plaintiff fails to file a Third Amended Complaint on or before August 5, 2011,

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and/or fails to timely file proof of service of a Third Amended Complaint on MERS, the

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Court will dismiss the instant action as against MERS.

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Finally, in light of the above, the Case Management Conference is hereby

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CONTINUED from August 26, 2011 to October 7, 2011, at 10:30 a.m. A Joint Case

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Management Statement shall be filed no later than September 30, 2011.

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IT IS SO ORDERED.

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Dated: July 19, 2011
MAXINE M. CHESNEY
United States District Judge

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