Stewart et al v. American Homestead Mortgage, LLC et al

Filing 35

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS. Signed by Judge Donald W. Molloy on 3/3/2015. (APP, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

RONALD and LYDIA STEWART,

FILED
MAR 0 3 2015
Clerk, U.S. District Court
Drstnct.Of Montana
Missoula

CV 14-45-M-DWM-JCL

Plaintiffs,
ORDER

vs.
AMERICAN HOMESTEAD
MORTGAGE, LLC; FLAGSTAR BANK,
FSB; SELENE FINANCE, LP;
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.; and
FIRST AMERICAN TITLE OF
MONTANA, INC., and all other parties
known or unknown thereof,
Defendants.

On December 29, 2014, Judge Lynch issued an order giving Plaintiffs
Ronald and Lydia Stewart (the "Plaintiffs") until January 8, 2015, within which to
show cause why this action should not be dismissed as against Defendants
American Homestead Mortgage, LLC, Flagstar Bank, FSB, and First American
Title of Montana, Inc. (collectively "Unserved Defendants") for failure to effect
service upon them in accordance with Rule 4(m) of the Federal Rules of Civil
Procedure. (Doc. 33.) On February 3, 2015, Judge Lynch entered findings noting
Plaintiffs had yet to make any further filing in the case and recommended the
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Unserved Defendants be dismissed without prejudice for failure to effect service.
(Doc. 34.) Plaintiffs did not file any objections to the Findings and
Recommendation; it is reviewed for clear error. McDonnell Douglas Corp. v.

Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error
exists ifthe Court is left with a "definite and firm conviction that a mistake has
been committed." United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000).
Pursuant to Rule 4(m) "[i]f 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 services be made within a specified time." Plaintiffs filed their
Complaint on February 28, 2014. (Doc. 1.) The Unserved Defendants have not
been served to date. Plaintiffs were giving notice of their failure to effect service
pursuant to Rule 4(m). Plaintiffs have presented no evidence, and none is present
in the record, that there is a good faith reason for the delay. Although Plaintiffs
are proceeding pro se, pro se litigants are "bound by the rules of procedure,"

Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). Further, Plaintiffs have had
over a year to effect service in this case or request an extension of the deadline for
service if one was necessary. Therefore, it is appropriate to dismiss the Unserved
Defendants without prejudice instead of providing further time for service.
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Additionally, in his order of December 29, 2014, Judge Lynch dismissed
Defendants Selene Finance, LP and Mortgage Electronic Registration Systems,
Inc., pursuant to Rule 41(a)(l). (Doc. 33.) With the dismissal of the Unserved
Defendants, no defendants remain in this action.
Accordingly, IT IS ORDERED that the Findings and Recommendation
(Doc. 34) is ADOPTED IN FULL.
IT IS FURTHER ORDERED that the Unserved Defendants are
DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the Clerk of Court is directed to enter a
judgment of dismissa::;d close this case.
Dated this£... day of March, 2015.

, District Judge
ict Court

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