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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1 ** E-filed April 3, 2012 ** 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 For the Northern District of California NOT FOR CITATION 8 United States District Court 7 SAN JOSE DIVISION 11 12 13 14 RENE AGUINALDO; ET AL., Plaintiffs, v. OCWEN LOAN SERVICING LLC; ET AL., Defendants.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 15 16 Plaintiffs Rene and Grace Aguinaldo sued OCWEN Loan Servicing, LLC (“OCWEN”) in 17 Santa Clara County Superior Court for breach of contract, fraud, negligence and emotional distress 18 arising out of defendant’s foreclosure of plaintiffs’ residence. Dkt. No. 1, Exh. A (“Complaint”). 19 OCWEN removed the action to this court on March 20, 2012, and consented to the undersigned’s 20 jurisdiction on March 23. Dkt. Nos. 1 (“Notice of Removal”); 4 (“Consent”). On March 30, it filed a 21 motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). Dkt. No. 6. Simultaneously, 22 OCWEN also filed a “request for reassignment,” allegedly pursuant to Civil L. R. 73-1(a), because 23 plaintiffs have not yet filed either a consent or declination form. Dkt. No. 9. 24 OCWEN’s Request for Reassignment is denied. Civil Local Rule 73-1 states that “unless the 25 magistrate judge has set a different deadline,” the parties shall “either file written consent to the 26 jurisdiction of the magistrate judge, or request reassignment to a district judge” within 7 days of the 27 filing of a motion requiring consent to proceed before a magistrate judge. Civ. L.R. 73-1(a). Here, 28 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 3 to either consent to the magistrate’s jurisdiction or request reassignment (i.e. decline the magistrate 4 judge’s jurisdiction). Thus, each party need only consent or decline. OCWEN does not need to 5 request reassignment based on the fact that plaintiffs have not yet consented or declined, and even if 6 it did need to make such a request, plaintiffs’ statutory time to consent has not yet elapsed. Civil L. 7 R. 73-1(a)(2) gives the parties 7 days from the date the motion is filed to consent or decline. That 7 8 day period has not yet elapsed. Accordingly, the request is DENIED as untimely and unnecessary. 9 In addition, the court now sets a new deadline for plaintiffs to consent or decline the 10 For the Northern District of California March 30 and simultaneously requested reassignment based on plaintiffs’ failure to file a consent or 2 United States District Court 1 undersigned’s jurisdiction. All parties who have not yet done so shall, no later than April 13, 2012, 11 file either (1) a Consent to Proceed before a United States Magistrate Judge or (2) a Declination to 12 Proceed before a Magistrate Judge and Request for Reassignment to a United States District Judge. 13 See N.D. Cal. Civ. R. 73-1. The consent and declination forms are available at the Clerk’s Office 14 and may also be obtained from the court’s website at http://www.cand.uscourts.gov. 15 16 17 18 IT IS SO ORDERED. Dated: April 3, 2012 HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 2 1 C12-01393 HRL Notice will be electronically mailed to: 2 Mimi Trieu Christian Chapman Eric Houser 3 4 mimi@trieucounsel.com cchapman@houser-law.com ehouser@houser-law.com 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. 5 6 7 8 9 For the Northern District of California United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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