Zavala v. Deutsche Bank Trust Company Americas as Trustee Rali 2006-QS8

Filing 22

ORDER DISMISSING CLAIMS AGAINST DEFENDANT DEUTSCHE BANK TRUST COMPANY AMERICAS AS TRUSTEE RALI 2006-QS8. Signed by Judge Laurel Beeler on 7/10/2013. (lblc1, COURT STAFF) (Filed on 7/10/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION
RICARDO ZAVALA,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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No. C 13-1040 LB

Plaintiff,
ORDER DISMISSING CLAIMS
AGAINST DEUTSCHE BANK

v.
DEUTSCHE BANK TRUST COMPANY
AMERICAS AS TRUSTEE RALI 2006-QS8;
organized and existing under laws of the
United States, TRUSTEE CORPS,

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Defendants.
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___________________________________/
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Pro se Plaintiff Ricardo Zavala filed this suit against Deutsche Bank Trust Company Americas

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as Trustee Rali 2006-QS8 (“Deutsche Bank”) and Trustee Corps for damages and to prevent them

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from foreclosing on his property. See Complaint, ECF No. 1.1 The same day he filed the complaint,

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Zavala consented to this court’s jurisdiction and moved for leave to proceed in forma pauperis. ECF

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No. 3. The court granted his motion, ECF No. 5, but Zavala failed to provide an address for service

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of summons on Deutsche Bank, despite the court requesting it. See Clerk’s Letter requesting

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address for service of summons, ECF No. 7; see generally Docket. On May 15, 2013, the court

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Citations are to the Electronic Case File (“ECF”) with pin cites to the electronicallygenerated page numbers at the top of the document.

C 13-01040
ORDER

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directed Mr. Zavala to serve Deutsche Bank by July 5, 2013 and to file proof of service by July 8,

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2013 or risk dismissal without prejudice under Federal Rule of Civil Procedure 4(m). ECF No. 17.

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Zavala failed to file any proof of service on Deutsche Bank or respond to the court’s order. See

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generally Docket.

after it files the complaint. The 120 days for service runs from the date of the original complaint.

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See Fed. R. Civ. P. 4(m). A court may dismiss a case without prejudice if a plaintiff has not

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complied with Rule 4(m) unless the plaintiff shows good cause for its failure to serve a defendant.

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Id. If good cause appears, the court must extend the time for service for an appropriate period. Id.

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Whether good cause exists is determined on a case by case basis. In re Sheehan, 253 F.3d 507, 512

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(9th Cir. 2001). A plaintiff may show good cause where it attempted to serve a defendant but has

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For the Northern District of California

Federal Rule of Civil Procedure 4(m) requires a plaintiff to serve a defendant within 120 days

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UNITED STATES DISTRICT COURT

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not yet completed it, was confused about the requirements for service of process, or was prevented

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from serving a defendant because of events outside of its control. See Wei v State of Hawaii, 763

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F.2d 370, 372 (9th Cir. 1985) (applying the good cause standard in Rule 4(j) which was replaced by

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Rule 4(m) in 1993); Mateo v. M/S KISO, 805 F.Supp. 792, 795 (N.D. Cal. 1992) (overturned on

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other grounds). Evasion of service could also constitute good cause for delay in service. Id. at 371;

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Intrade Industries, Inc. v. Foreign Cargo Mgmt. Corp., No. 1:07-CV-1893 AWI GSA, 2008 WL

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5397495, at *1 (E.D. Cal. Dec. 24, 2008) (citing Hendry v. Schneider, 116 F.3d 446, 449 (10th Cir.

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1997)).

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I. WHETHER MR. ZAVALA CAN DEMONSTRATE GOOD CAUSE

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Mr. Zavala has not responded to the court’s order to show cause. Accordingly, he has not

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demonstrated good cause. The court does not find that Mr. Zavala will be unduly prejudiced by a

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dismissal without prejudice. He has had ample opportunity to provide the Clerk of the Court with an

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address at which to serve Deutsche Bank, such that the court likely could dismiss his claims for

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failure to prosecute under Rule 41(b), which would preclude any future suit. Given the court’s

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lenient approach to Mr. Zavala’s inexcusable silence and delay, any prejudice is solely attributable

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to his actions.

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C 13-01040
ORDER

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II. WHETHER THIS COURT CAN DISMISS ZAVALA’S CLAIMS
Mr. Zavala has consented to this court’s jurisdiction. Consent (Zavala), ECF No. 6. The court

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does not require the consent of Deutsche Bank to dismiss an action when it has not been served and

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therefore is not a party under 28 U.S.C. § 636(c). Ornelas v. De Frantz, No. C 00-1067 JCS, 2000

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WL 973684, at *2 n.2 (N.D. Cal. June 29, 2000) (citing Neals v. Norwood, 59 F.3d 530, 532 (5th

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Cir. 1995)); cf. United States v. Real Property, 135 F. 3d 1312, 1316 (9th Cir. 1997) (holding that

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the consent of an individual who was not a party was not a precondition to the magistrate judge’s

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jurisdiction). Accordingly, the court can dismiss Mr. Zavala’s claims against Deutsche Bank.

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For the Northern District of California

UNITED STATES DISTRICT COURT

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For the reasons stated above, the court DISMISSES Mr. Zavala’s claims against Deutsche Bank
without prejudice.
IT IS SO ORDERED.
Dated: July 10, 2013
_______________________________
LAUREL BEELER
United States Magistrate Judge

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C 13-01040
ORDER

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