Juntilla et al v. RESI Home loans IV, LLC et al

Filing 61

ORDER Denying 50 Motion to Amend. FURTHER ORDERED that 59 Motion for Default Judgment is DENIED. Signed by Judge Miranda M. Du on 12/3/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA
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GERARD JUNTILLA and DIXIE
JUNTILLA,

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Plaintiffs,

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Case No. 2:12-cv-00790-MMD-PAL
ORDER
(Motion to Amend Complaint – dkt. no. 50
Motion for Default Judgment – dkt. no. 59)

v.
RESI HOME LOANS IV, LLC f/k/a
AMERICAN HOME MORTGAGE, INC.;
FIDELITY NATIONAL TITLE INSURANCE
COMPANY; WELLS FARGO BANK, N.A.,
et al.,

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Defendants.

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I.

INTRODUCTION

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Before the Court are Plaintiffs’ Motion for Leave to Amend Amended Complaint

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(“Motion to Amend”) (dkt. no. 50) and Motion for Default Judgment against Fidelity

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National Title Insurance Company (“Fidelity”) (dkt. no. 59). For the reasons discussed

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below, these motions are denied.

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The facts giving rise to this case are set out more particularly in the Court’s prior

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Order entered on November 26, 2012. (Dkt. no. 57.) In that Order, the Court addressed

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several pending motions, including Defendant RESI Home Loans IV, LLC’s (“RESI”)

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joinder to Defendant Wells Fargo’s Motion to Dismiss.

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dismissed with prejudice claims against RESI.

(Dkt. no. 57.)

The Court

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II.

DISCUSSION

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A.

Motion to Amend

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Plaintiffs seek leave to amend their complaint to add Homeward Residential, Inc.

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(“Homeward”) based on Homeward’s representation that it is erroneously named in this

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action as RESI.

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against RESI, Plaintiffs’ proposed amendment to add Homeward is futile.

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Motion to Amend is therefore denied.

However, because the Court has dismissed with prejudice claims
Plaintiff’s

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B.

Motion for Default Judgment

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Plaintiffs obtained a Clerk’s Entry of Default against Defendant Fidelity on

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November 20, 2012.

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(Dkt. no. 53.)

Plaintiffs now seek to enter default judgment

against Fidelity.

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It is axiomatic that proof of service of process is required to enter default

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judgment. See Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d

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685, 688 (9th Cir. 1988). Service of a domestic or foreign corporation is controlled by

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Rule 4(h) and may be affected pursuant to the laws of the state where the court is

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located or where service is sought. 1 Moore’s Federal Practice § 4.51[1] (3d ed.2008)

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(citing Fed. R. Civ. P. 4(h)(1)(A); Fed. R. Civ. P. 4(e)(1)). In Nevada, “if the suit is

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against a foreign corporation,” such as Fidelity, personal service must be made upon “an

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agent designated for service of process as required by law.” Nev. R. Civ. P. 4(d)(2). If

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the foreign corporation has not designated an agent, service must be made “to the

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secretary of state or the deputy secretary of state, as provided by law.”
Here, Plaintiffs’ have not personally served Fidelity either through an agent or the

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Plaintiffs’ proof of service shows only that the summons and

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secretary of state.

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complaint were sent to Fidelity via certified mail. (Dkt. no. 38 at 2.) However, such

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service is improper. Because Fidelity has not been properly served, Plaintiffs’ Motion for

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Default Judgment is denied.

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VI.

CONCLUSION

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IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Amend is DENIED.

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IT IS FURTHER ORDERED that Plaintiffs’ Motion for Default Judgment is

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DENIED.

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DATED THIS 3rd day of December 2012.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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