Barcena Chavez v. Citi Mortgage Inc. et al

Filing 9

ORDER DISMISSING ACTION Without Prejudice for Lack of Prosecution and for Failure to Serve Complaint and Granting 4 Motion to Expunge Lis Pendens: IT IS ORDERED this action is DISMISSED without prejudice. IT IS FURTHER ORDERED the lis pendens plaintiff recorded on real property located at 555 Carrie Circle, San Marcos, California 92069 is EXPUNGED. Signed by Judge M. James Lorenz on 6/14/2010.(mjj)

1 2 3 4 5 6 7 8 9 10 11 BARCENA CHAVEZ, 12 13 v. 14 CITI MORTGAGE INC., et al., 15 16 17 Defendants. Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Civil No. 09cv1976 L(JMA) ORDER DISMISSING ACTION WITHOUT PREJUDICE FOR LACK OF PROSECUTION AND FOR FAILURE TO SERVE COMPLAINT and GRANTING MOTION TO EXPUNGE LIS PENDENS [doc. #4] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Plaintiff, who is represented by counsel, filed his complaint and notice of lis pendens on

18 September 9, 2009. A summons was issued at that time but nothing in the court's docket reflects 19 service of process on defendants. Under Federal Rule of Civil Procedure 4(m), the complaint 20 was required to be served no later than January 7, 2010. Failure to timely serve the complaint 21 results in dismissal of the action without prejudice. 22 Further, the court may dismiss an action for want of prosecution pursuant to Civil Local

23 Rule 41.1 which provides that "[a]ctions or proceedings which have been pending in this court 24 for more than six months, without any proceedings or discovery having been taken therein 25 during such period, may, after notice, be dismissed by the court for want of prosecution, at the 26 calling of a calendar prepared for that purpose by the court." Plaintiff has taken no action since 27 the filing of the complaint and therefore more than six months have passed since the complaint's 28 filing.
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On May 11, 2010, the Court set this OSC for dismissal for lack of prosecution and failure

2 to serve the complaint. On that same date, defendants GMAC Mortgage, LLC and ETS 3 Services, LLC filed a motion to expunge lis pendens that is set for hearing on July 6, 2010. 4 Plaintiff failed to appear at the order to show cause hearing to provide good cause for his

5 failure serve and to prosecute this action. Accordingly, the Court will dismiss the action without 6 prejudice. 7 Further, the Court will grant defendants' motion to expunge the lis pendens. A court

8 "shall order the notice [of pendency] expunged if . . . the pleading on which the notice is based 9 does not contain a real property claim." CAL. CIV. CODE § 405.31. A "real property claim" is 10 defined, inter alia, as a cause of action "which would, if meritorious, affect . . . title to, or the 11 right to possession of, specific real property. . .." CAL. CIV. CODE § 405.4. Plaintiff bears the 12 burden of establishing, by a preponderance of the evidence, the probable validity of the claims. 13 Because the operative complaint has been dismissed for failure to effectuate service of

14 process and to prosecute this action, plaintiffs have alleged no "real property claim." The lis 15 pendens therefore is properly expunged. 16 Based on the foregoing, IT IS ORDERED this action is DISMISSED without prejudice.

17 IT IS FURTHER ORDERED the lis pendens plaintiff recorded on real property located at 555 18 Carrie Circle, San Marcos, California 92069 is EXPUNGED. 19 IT IS SO ORDERED.

20 DATED: June 14, 2010 21 22 23 COPY TO: 24 HON. JAN M. ADLER UNITED STATES MAGISTRATE JUDGE 25 26 ALL PARTIES/COUNSEL 27 28
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M. James Lorenz United States District Court Judge

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