Uy v. Wells Fargo Bank, N.A. et al

Filing 43

ORDER DISMISSING PLAINTIFF'S CLAIMS AGAINST NEW CENTURY AND MERS. Signed by JUDGE ALAN C KAY on 4/20/11. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

EUSTAQUIO N. UY,

)
)
Plaintiff,
)
)
v.
)
)
WELLS FARGO BANK, N.A., AS
)
TRUSTEE FOR CARRINGTON MORTGAGE )
LOAN TRUST, SERIES 2006-NC2
)
ASSET-BACKED PASS-THROUGH
)
CERTIFICATES; NEW CENTURY
)
MORTGAGE CORPORATION; MORTGAGE
)
ELECTRONIC REGISTRATION SYSTEMS, )
INC.; DOES 1-20,
)
)
)
Defendants.
)

Civ. No. 10-00204 ACK-RLP

ORDER DISMISSING PLAINTIFF’S CLAIMS AGAINST NEW CENTURY AND MERS
On April 7, 2010, Eustaquio N. Uy (“Plaintiff”) filed a
complaint (“Complaint”) in this Court against Wells Fargo Bank
N.A. as Trustee for Carrington Mortgage Loan Trust, Series
2006-NC2 Asset-Backed Pass-Through Certificates (“Wells Fargo”),
New Century Mortgage Corporation (“New Century”), and Mortgage
Electronic Registration Systems, Inc. (“MERS”).

Doc. No. 1.

On

March 28, 2011, the Court granted Wells Fargo’s motion for
summary judgment and dismissed all of Plaintiff’s claims against
Wells Fargo.

Doc. No. 39 (“Summary Judgment Order”).

The Court

found that a number of Plaintiff’s claims against Wells Fargo

were time-barred, and that the remaining claims failed on the
merits.
Also on March 28, 2011, because Plaintiff had not
timely served New Century or MERS with a copy of the Complaint,
the Court ordered Plaintiff to show cause by April 15, 2011, why
the claims against these defendants should not be dismissed
without prejudice pursuant to Fed. R. Civ. P. (“FRCP”) 4(m).
Doc. No. 40 (“Order to Show Cause”).

The Court warned Plaintiff

“that failure to respond will result in dismissal of the claims
against [New Century and MERS] without prejudice.”
Cause at 2.

Order to Show

To date, Plaintiff has failed to respond to the

Order to Show Cause.
Under FRCP 4(m), “[i]f a defendant is not served within
120 days after the complaint is filed,” and the plaintiff does
not show good cause for failing to timely serve that defendant,
the Court “must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.”
“In making extension decisions under [FRCP] 4(m) a district court
may consider factors ‘like a statute of limitations bar,
prejudice to the defendant, actual notice of a lawsuit, and
eventual service.’”

Efaw v. Williams, 473 F.3d 1038, 1041 (9th

Cir. 2007) (quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d
381, 383 (7th Cir. 1998)).

Where a plaintiff does not show good

cause for failing to timely serve a defendant, the district court

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has broad discretion under FRCP 4(m) to dismiss the claims
against that defendant without prejudice.

See In re Sheehan, 253

F.3d 507, 512-13 (9th Cir. 2001).
Here, more than one year has passed since Plaintiff
filed the Complaint, yet Plaintiff has not served New Century or
MERS.

Nor has Plaintiff shown good cause for failing to effect

service on these parties as required by FRCP 4.

As noted,

Plaintiff has not even responded to the Court’s Order to Show
Cause.

In addition, a number of the claims against New Century

and MERS were filed outside of the applicable limitations
periods.

See Summary Judgment Order at 18-27; Kemp v. DMI-

Aviation, Inc., No. CIV 07-428-TUC-CKJ, 2008 WL 2477085, at *2
(D. Ariz. June 18, 2008) (“Where, as here, the filing of the
original complaint does not appear to have been filed within the
statute of limitations, the Court does not give significant
weight to a potential statute of limitations bar.

In effect, the

Court considers that Kemp would have to show some basis to toll
the statute of limitations with or without a dismissal; dismissal
would simply increase the time Kemp would have to show is subject
to tolling.”).

Finally, there is no indication that either New

Century or MERS possesses actual notice of this lawsuit.

See

Efaw, 473 F.3d at 1041.
Accordingly, the Court hereby DISMISSES Plaintiff’s
claims against New Century and MERS without prejudice.

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IT IS SO ORDERED.
Dated:

Honolulu, Hawai‘i, April 20, 2011.

________________________________
Alan C. Kay
Sr. United States District Judge

Uy v. Wells Fargo Bank N.A., et al., Civ. No. 10-00204 ACK-RLP, Order
Dismissing Plaintiff’s Claims Against New Century and MERS.

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