Aguinaldo et al v. OCWEN Loan Servicing, LLC

Filing 10

ORDER DENYING 9 DEFENDANT'S REQUEST FOR REASSIGNMENT, AND SETTING DEADLINE FOR CONSENT OR DECLINATION TO PROCEED BEFORE A UNITED STATES MAGISTRATE JUDGE. All parties who have not done so shall, no later than April 13, 2012, file either a consent or declination form. Forms are available at the Clerk's Office and may also be obtained from the court's website at http://www.cand.uscourts.gov. Signed by Magistrate Judge Howard R. Lloyd on 4/3/12. (hrllc1, COURT STAFF) (Filed on 4/3/2012)

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** E-filed April 3, 2012 **

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

NOT FOR CITATION

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United States District Court

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SAN JOSE DIVISION

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RENE AGUINALDO; ET AL.,
Plaintiffs,
v.
OCWEN LOAN SERVICING LLC; ET AL.,
Defendants.
____________________________________/

No. C12-01393 HRL
ORDER DENYING DEFENDANT’S
REQUEST FOR REASSIGNMENT
AND SETTING DEADLINE FOR
CONSENT OR DECLINATION TO
PROCEED BEFORE A UNITED
STATES MAGISTRATE JUDGE

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Plaintiffs Rene and Grace Aguinaldo sued OCWEN Loan Servicing, LLC (“OCWEN”) in

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Santa Clara County Superior Court for breach of contract, fraud, negligence and emotional distress

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arising out of defendant’s foreclosure of plaintiffs’ residence. Dkt. No. 1, Exh. A (“Complaint”).

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OCWEN removed the action to this court on March 20, 2012, and consented to the undersigned’s

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jurisdiction on March 23. Dkt. Nos. 1 (“Notice of Removal”); 4 (“Consent”). On March 30, it filed a

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motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). Dkt. No. 6. Simultaneously,

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OCWEN also filed a “request for reassignment,” allegedly pursuant to Civil L. R. 73-1(a), because

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plaintiffs have not yet filed either a consent or declination form. Dkt. No. 9.

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OCWEN’s Request for Reassignment is denied. Civil Local Rule 73-1 states that “unless the

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magistrate judge has set a different deadline,” the parties shall “either file written consent to the

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jurisdiction of the magistrate judge, or request reassignment to a district judge” within 7 days of the

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filing of a motion requiring consent to proceed before a magistrate judge. Civ. L.R. 73-1(a). Here,

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defendant consented to magistrate judge jurisdiction on March 23, filed a motion to dismiss on

declination form. Defendant apparently misreads Local Rule 73-1(a)(2). The rule requires each party

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to either consent to the magistrate’s jurisdiction or request reassignment (i.e. decline the magistrate

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judge’s jurisdiction). Thus, each party need only consent or decline. OCWEN does not need to

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request reassignment based on the fact that plaintiffs have not yet consented or declined, and even if

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it did need to make such a request, plaintiffs’ statutory time to consent has not yet elapsed. Civil L.

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R. 73-1(a)(2) gives the parties 7 days from the date the motion is filed to consent or decline. That 7

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day period has not yet elapsed. Accordingly, the request is DENIED as untimely and unnecessary.

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In addition, the court now sets a new deadline for plaintiffs to consent or decline the

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For the Northern District of California

March 30 and simultaneously requested reassignment based on plaintiffs’ failure to file a consent or

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United States District Court

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undersigned’s jurisdiction. All parties who have not yet done so shall, no later than April 13, 2012,

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file either (1) a Consent to Proceed before a United States Magistrate Judge or (2) a Declination to

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Proceed before a Magistrate Judge and Request for Reassignment to a United States District Judge.

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See N.D. Cal. Civ. R. 73-1. The consent and declination forms are available at the Clerk’s Office

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and may also be obtained from the court’s website at http://www.cand.uscourts.gov.

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IT IS SO ORDERED.
Dated: April 3, 2012
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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C12-01393 HRL Notice will be electronically mailed to:

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Mimi Trieu
Christian Chapman
Eric Houser

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[e-mail]
[e-mail]
[e-mail]

Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

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For the Northern District of California

United States District Court

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