Swartz et al v. CitiMortgage, Inc. et al

Filing 61

ORDER DISMISSING COMPLAINT AS TO UNSERVED DEFENDANTS. Signed by JUDGE LESLIE E. KOBAYASHI on 12/3/2012. ~ "Pursuant to Rule 4(m), this Court HEREBY DISMISSES Plaintiffs' Complaint against [American Guardian Financial Group, Inc.] ('A merican Guardian') and [First National Mortgage Services, LLC] ('First National'). The dismissal is WITHOUT PREJUDICE to the filing of a new action against American Guardian and First National." ~ (afc) 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
)
)
)
)
Plaintiffs,
)
)
vs.
)
CITY MORTGAGE, INC.; ABN AMRO )
)
MORTGAGE GROUP, INC.;
AMERICAN GUARDIAN FINANCIAL
)
)
GROUP, INC.; FIRST NATIONAL
MORTGAGE SERVICES, LLC; JOHN )
)
DOES 1-10; JANE ROES 1-10;
)
DOE CORPORATIONS,
)
PARTNERSHIPS OR OTHER
)
ENTITIES 1-10,
)
)
Defendants.
_____________________________ )
BURTON SWARTZ and NANCY D.
SWARTZ,

CIVIL NO. 10-00651 LEK-RLP

ORDER DISMISSING COMPLAINT AS TO UNSERVED DEFENDANTS
Plaintiffs Burton F. Swartz and Nancy D. Swartz
(“Plaintiffs”) filed the instant action on November 8, 2010
against Defendants Citi Mortgage, Inc. (“CMI”), ABN Amro Mortgage
Group, Inc. (“ABN”), American Guardian Financial Group, Inc.
(“American Guardian”), and First National Mortgage Services, LLC
(“First National”).

On November 28, 2012, this Court issued an

order granting summary judgment in favor of CMI and ABN as to all
claims against them.
the same day.

CMI and ABN were terminated as parties on

Plaintiffs never filed evidence that they effected

service of the Complaint on American Guardian and First National,
and those entities have never entered an appearance in this

action.
Fed. R. Civ. P. 4(m) states, in pertinent part:
If a defendant is not served within 120 days after
the complaint is filed, the court--on motion or on
its own after notice to the plaintiff--must
dismiss the action without prejudice against that
defendant or order that service be made within a
specified time. But if the plaintiff shows good
cause for the failure, the court must extend the
time for service for an appropriate period. . . .
Over two years have passed since the filing of Plaintiffs’
Complaint, and Plaintiffs have never articulated a reason for
their failure to serve the Complaint on American Guardian and
First National.

This Court therefore FINDS that an extension of

time to serve the Complaint is not warranted in this case.
Pursuant to Rule 4(m), this Court HEREBY DISMISSES Plaintiffs’
Complaint against American Guardian and First National.

The

dismissal is WITHOUT PREJUDICE to the filing of a new action
against American Guardian and First National.

This Court

expresses no opinion as to the merits or the timeliness of such
action.
Insofar as there are no claims remaining in this case,
this Court DIRECTS the Clerk’s Office to enter judgment and close
the case.
IT IS SO ORDERED.

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DATED AT HONOLULU, HAWAII, December 3, 2012.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

BURTON SWARTZ, ET AL. V. CITI MORTGAGE, INC., ET AL; CIVIL NO.
10-00651 LEK-RLP; ORDER DISMISSING COMPLAINT AS TO UNSERVED
DEFENDANTS

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