Sacayanan et al v. IndyMac Bank, FSB et al

Filing 8

ORDER Dismissing Case. Signed by Judge Lucy H. Koh on July 17, 2013. (lhklc2, COURT STAFF) (Filed on 7/17/2013)

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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.
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Case No.: 12-CV-04107-LHK
ORDER DISMISSING CASE

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For the reasons stated herein, the Court DISMISSES this case without prejudice for failure
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to prosecute.
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Plaintiffs filed a first document captioned “Complaint for: [sic] :Quo-Warranto Complaint”

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on August 3, 2012, naming as Defendants Indymac Bank, F.S.B., and Stewart Title Insurance
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Company (“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

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Defendants, and filed under the same case number. ECF No. 6. However, Plaintiffs have failed to
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submit any documentation demonstrating that they have properly served Defendants with copies of
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either document.
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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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Case No.: 12-CV-04107-LHK
ORDER DISMISSING CASE

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to the plaintiff—must dismiss the action without prejudice against that defendant or order that

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

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required to have filed proof of service of the original complaint by December 1, 2012. Assuming

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

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

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On May 28, 2013, the Court ordered Plaintiffs to show cause why this action should not be
dismissed for failure to prosecute. ECF No. 7. The Court ordered that Plaintiffs were required to

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file a response to the Order to Show Cause by June 12, 2013, and set a hearing on the Order to

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Show Cause for July 17, 2013, at 2:00 p.m. The Court also cautioned that Plaintiffs’ failure to

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United States District Court
For the Northern District of California

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respond to that Order to Show Cause and to appear at the July 17, 2013 hearing would result in

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dismissal without prejudice for failure to prosecute.

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Plaintiffs did not respond to the Order to Show Cause, or appear at the Order to Show

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Cause hearing. Accordingly, the Court hereby DISMISSES this case without prejudice for failure

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to prosecute.

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The Clerk shall close the file.
IT IS SO ORDERED.

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Dated: July 17, 2013

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_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 12-CV-04107-LHK
ORDER DISMISSING CASE