Casino et al v. Bank of America et al

Filing 37

ORDER DENYING THE CASINOS' MOTION FOR LEAVE TO FILE A LATE OPPOSITION, AND DISMISSING DEFENDANTS BANK OF AMERICA, N.A. AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., FROM THIS ACTION; ORDER TO SHOW CAUSE WHY COMPLAINT SHOULD NOT BE DISMISSE D AS TO DEFENDANT FIRST MAGNUS FINANCIAL CORPORATION 36 ; 34 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 7/1/11. ("...the court ORDERS the Casinos, on or before July 15, 2011, to SHOW CAUSE why the Complaint should not be dismi ssed with respect to First Magnus for failure to serve that Defendant. If the court does not receive a response from the Casinos by July 15, 2011, the Complaint will be dismissed.") (Motions terminated: 36 MOTION for Leav e to File Their Memorandum in Opposition to Motion to Dismiss filed by Estelita B. Casino, Mariano C. Casino, 34 MOTION to Dismiss Action Pursuant to Rule 41(b) filed by Mortgage Electronic Registration Systems, Bank of America. Show Cause R esponse due by 7/15/2011.) (emt, )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
MARIANO C. CASINO, an
individual; ESTELITA B.
CASINO, an individual,

)
)
)
)
Plaintiffs,
)
)
vs.
)
)
)
BANK OF AMERICA, a Business
Entity, form unknown; FIRST
)
MAGNUS FINANCIAL CORPORATION, )
a Business Entity, form
)
)
unknown; FIDELITY NATIONAL
TITLE CORPORATION, a Business )
)
Entity, form unknown;
)
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, a
)
Business Entity, form
)
unknown; and DOES 1-100
)
inclusive,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 10-00728 SOM/BMK
ORDER DENYING THE CASINOS’
MOTION FOR LEAVE TO FILE A
LATE OPPOSITION, AND
DISMISSING DEFENDANTS BANK OF
AMERICA, N.A., AND MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC., FROM THIS
ACTION; ORDER TO SHOW CAUSE
WHY COMPLAINT SHOULD NOT BE
DISMISSED AS TO DEFENDANT
FIRST MAGNUS FINANCIAL
CORPORATION

ORDER DENYING THE CASINOS’ MOTION FOR LEAVE TO FILE A LATE
OPPOSITION, AND DISMISSING DEFENDANTS BANK OF AMERICA, N.A.,
AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., FROM THIS
ACTION; ORDER TO SHOW CAUSE WHY COMPLAINT SHOULD NOT BE
DISMISSED AS TO DEFENDANT FIRST MAGNUS FINANCIAL CORPORATION
I.

ORDER DENYING THE CASINOS’ MOTION FOR LEAVE TO FILE A
LATE OPPOSITION, AND DISMISSING BANK OF AMERICA AND
MERS FROM THIS ACTION.
On May 4, 2011, the court granted the Motion to Dismiss

filed by Defendants Bank of America, N.A. (“Bank of America”),
and Mortgage Electronic Registration Systems, Inc. (“MERS”).
No. 31.

ECF

The court granted the motion with leave to amend as to

certain counts, and ordered any Amended Complaint be filed no

later than fourteen days from the date of the Order (May 18,
2011).

The Casinos failed to amend the Complaint.
On May 25, 2011, citing the Casinos’ failure to timely

amend their Complaint, Bank of America and MERS moved to dismiss
this action pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure, which provides that the court may dismiss an action
if, inter alia, the plaintiff fails to comply with a court order
or this district’s local rules.

See ECF No. 34.

The Casinos’

response to this motion was due on June 14, 2011.
The Casinos filed no response by that deadline.

See LR7.4.

On June 20,

2011, the court called the office of the Casinos’ counsel to
inquire as to whether the motion was unopposed.

The court was

subsequently informed by the Casinos’ counsel on June 22, 2011,
that he was not sure what he intended to do.

On June 30, 2011,

eight days later and only two business days before the hearing,
the Casinos filed a two-page motion for leave to file an
opposition memorandum.
attached as an exhibit.

ECF No. 36.

No proposed opposition was

The only reason provided for the failure

to timely file an opposition was “administrative error.”
The reason that the opposition deadline is 21 days
before the hearing is to allow the moving party time to file a
reply and to give the court time to adequately prepare for the
hearing.

Disregarding the local rules and failing to file an

opposition until two days before the hearing does a disservice to

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the court and to opposing counsel because it forces both to do
extra, expedited work.

Under the circumstances presented here,

“administrative error,” without more, is a wholly insufficient
basis to suspend a hearing that has been scheduled for over a
month so that the Casinos may now begin to prepare their
opposition.

The court notes that, in another recent case, the

Casinos’ counsel, Robin R. Horner, requested leave to file a late
opposition, citing “an oversight in our office,” and his request
was denied.

See Letter from Robin R. Horner to Court, Enriquez

v. Aurora Loan Servs., LLC, Civ. No. 10-00281 SOM/KSC, ECF No.
24; EO: Re Motion to Dismiss Complaint, ECF No. 23 (denying
request to file late opposition).

Indeed, Horner eventually paid

a sanction to the court after he ultimately disregarded the
court’s order and attempted to file an opposition two business
days before the hearing.

Enriquez, 2011 WL 1103809 (D. Haw. Mar.

22, 2011); Receipt for Sanctions Paid, Enriquez, Civ. No. 1000281 SOM/KSC, ECF No. 33.

The motion for leave to file a late

opposition is DENIED.
The court finds that a hearing on Bank of America and
MERS’ Motion is neither necessary nor appropriate.

See LR7.2(d).

In light of the lack of opposition to the Motion to Dismiss, the
earlier direction that any amended Complaint had to be filed by
May 18, 2011, and the Casinos’ failure to do anything at all
about amending their Complaint, even after the present motion was

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filed, the Motion to Dismiss is GRANTED as unopposed with respect
to Bank of America and MERS.

These Defendants are hereby

DISMISSED from this action.
II.

ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED
AS TO FIRST MAGNUS.
The court’s May 4 Order granting Bank of America and

MERS’ Motion to Dismiss also dismissed, sua sponte, all Counts
except Count IV with respect to First Magnus Financial
Corporation (“First Magnus”).

Count IV as asserted against First

Magnus is therefore the sole remaining count of the Complaint.1
Pursuant to Rule 4 of the Federal Rules of Civil
Procedure, a plaintiff must serve all Defendants in an action
within 120 days of the filing of the Complaint.
4(c), (m).
2010.

Fed. R. Civ. P.

The Casinos filed their Complaint on December 9,

ECF No. 1.

As it is now the beginning of July 2011, the

time for service has long passed.

The docket does not show that

First Magnus has been served with the summons and Complaint.

See

Fed. R. Civ. P. 4(l) (requiring proof of service unless service
has been waived).

Therefore, pursuant to Rule 4(m) of the

Federal Rules of Civil Procedure, the court ORDERS the Casinos,
on or before July 15, 2011, to SHOW CAUSE why the Complaint
should not be dismissed with respect to First Magnus for failure

1

The court notes that the Order also dismissed all Counts of
the Complaint sua sponte with respect to the remaining Defendant,
Fidelity National Title Corporation. ECF No. 31.
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to serve that Defendant.

If the court does not receive a

response from the Casinos by July 15, 2011, the Complaint will be
dismissed.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 1, 2011.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Casino v. Bank of America; Civil No. 10-00728 SOM/BMK; ORDER DENYING THE CASINOS'
MOTION FOR LEAVE TO FILE A LATE OPPOSITION, AND DISMISSING DEFENDANTS BANK OF AMERICA,
N.A., AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., FROM THIS ACTION; ORDER TO
SHOW CAUSE WHY COMPLAINT SHOULD NOT BE DISMISSED AS TO DEFENDANT FIRST MAGNUS
FINANCIAL CORPORATION.

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