Sacayanan et al v. IndyMac Bank, FSB et al

Filing 7

ORDER to Show Cause. Signed by Judge Lucy H. Koh on May 28, 2013. (lhklc2, COURT STAFF) (Filed on 5/28/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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JAMES SACAYANAN, AMELIA
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SACAYANAN, and DAVID WYNN MILLER, )
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Plaintiffs,
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v.
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INDYMAC BANK, FSB, and STEWART
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TITLE INSURANCE COMPANY,
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Defendants.
)

Case No.: 12-CV-04107-LHK
ORDER TO SHOW CAUSE WHY CASE
SHOULD NOT BE DISMISSED FOR
FAILURE TO PROSECUTE

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For the reasons stated herein, the Court ORDERS Plaintiffs James Sacayanan, Amelia
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Sacayanan, and David Wynn Miller (“Plaintiffs”) to show cause why this case should not be

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dismissed for failure to prosecute.
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Plaintiffs have not been diligent in serving the Defendants in this case. Plaintiffs filed a
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first document captioned “Complaint for: [sic] :Quo-Warranto Complaint” on August 3, 2012,

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naming as Defendants Indymac Bank, F.S.B., and Stewart Title Insurance Company
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(“Defendants”). ECF No. 1. On October 31, 2012, Plaintiffs filed a second document captioned
“Complaint for: [sic] :Quo-Warranto Complaint and: Lis Pendens,” naming the same Defendants,

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and filed under the same case number. ECF No. 6. However, Plaintiffs have failed to submit any
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documentation demonstrating that they have properly served Defendants with copies of either
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document.
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Case No.: 12-CV-04107-LHK
ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE

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Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, “[i]f a defendant is not

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served within 120 days after the complaint is filed, the court---on motion or on its own after notice

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to the plaintiff—must dismiss the action with prejudice against the defendant or order that service

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be made within a specified time.” Fed. R. Civ. P. 4(m). Accordingly, Plaintiffs were required to

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have filed proof of service of the original complaint by December 1, 2012. Assuming that ECF

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No. 6 is to be construed as Plaintiffs’ amended complaint, Plaintiffs were required to have filed

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proof of service of that complaint by February 28, 2013.

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Thus, the Court ORDERS Plaintiffs to show cause why this action should not be dismissed
for failure to prosecute. Plaintiffs have until June 12, 2013, to file a response to this Order to Show

United States District Court
For the Northern District of California

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Cause. A hearing on this Order to Show Cause is set for Wednesday, July 17, 2013, at 2:00 p.m.

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Plaintiffs’ failure to respond to this Order and to appear at the July 17, 2013 hearing will result in

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dismissal without prejudice for failure to prosecute.

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IT IS SO ORDERED.

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Dated: May 28, 2013

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 12-CV-04107-LHK
ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE