Morrow v. Wells Fargo Bank, N.A. et al

Filing 14

ORDER regarding the service of Defendant Cal-Western and setting hearing on Defendant Wells Fargo's motions. Ms. Morrow shall file a proof of Cal-Western's service no later than October 12, 2012. Wells Fargo's motion to dismiss and motion to expunge a lis pendens is set for hearing on November 1, 2012. Signed by Magistrate Judge Laurel Beeler on 8/22/2012. (lblc2, COURT STAFF) (Filed on 8/22/2012)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 San Francisco Division EVA MORROW, 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 No. C 12-03045 LB Plaintiff, v. 13 WELLS FARGO BANK, et al., 14 15 16 Defendants. _____________________________________/ ORDER REGARDING THE SERVICE OF DEFENDANT CAL-WESTERN AND SETTING HEARING ON DEFENDANT WELLS FARGO’S MOTIONS [Re: ECF Nos. 1, 5, 6] Plaintiff Eva Morrow filed suit against Defendants Wells Fargo Bank, N.A. (“Wells Fargo”) and 17 Cal-Western Reconveyance Corporation (“Cal-Western”) in Alameda County Superior Court for 18 alleged misconduct in relation to those entities’ foreclosure on her property. See Notice of Removal, 19 ECF No. 1 at 2.1 Wells Fargo removed the action to this court on June 13, 2012, and it moved to 20 dismiss Mr. Morrow’s First Amended Complaint and for an order expunging a lis pendens. Notice 21 of Removal, ECF No. 1; Motion to Dismiss, ECF No. 5; Motion to Expunge, ECF No. 6. 22 23 24 25 Once a case has been removed from state court, it is subject to the Federal Rules of Civil Procedure. Fed. R. Civ. P. 81(c)(1). As far as the court knows, Ms. Morrow did not serve Cal-Western prior to Wells Fargo’s removal of the action on June 13, 2012. Thus, Ms. Morrow has until October 11, 2012 to serve Cal- 26 27 1 28 Citations are to the Electronic Case File (“ECF”) with pin cites to the electronic page number at the top of the document, not the pages at the bottom. C 12-03045 LB ORDER 1 Western. See 28 U.S.C. § 1448 (“ In all cases removed from any State court to any district court of 2 the United States in which any one or more of the defendants has not been served with process or in 3 which the service has not been perfected prior to removal, or in which process served proves to be 4 defective, such process or service may be completed or new process issued in the same manner as in 5 cases originally filed in such district court.”); Fed. R. Civ. P. 4(m) (allowing, in the absence of good 6 cause, a plaintiff 120 days to serve a defendant). Fargo’s motions—Ms. Morrow argues that Cal-Western’s inclusion as a named defendant destroys 9 the court’s diversity jurisdiction, but Cal-Western must be served to become a party to this action, 10 Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (“[O]ne becomes a 11 party officially, and is required to take action in that capacity, only upon service of a summons or 12 For the Northern District of California Because Cal-Western’s status as a defendant to this action is essential to the resolution of Wells 8 UNITED STATES DISTRICT COURT 7 other authority-asserting measure stating the time within which the party served must appear and 13 defend.”)—the court vacated the August 2, 2012 hearing date. 14 Accordingly, Ms. Morrow shall file a proof of Cal-Western’s service no later than October 12, 15 2012. Wells Fargo’s motion to dismiss and motion to expunge a lis pendens is set for hearing on 16 November 1, 2012. 17 18 IT IS SO ORDERED. Dated: August 22, 2012 _______________________________ LAUREL BEELER United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 C 12-03045 LB ORDER 2

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