Wilson, et al v. LNV Corporation, et al

Filing 24

ORDER denying as moot 18 Motion to Dismiss for Failure to State a Claim - In the event arguments raised in the motion to dismiss may apply equally to the amended complaint, defendants may file again a motion to dismiss in response to the amended c omplaint. Plaintiff Smith is DISMISSED from this action for failure to prosecute. Where summons has yet to be provided for Dovenmuehle and Hutchens, and those defendants thus have not yet been served with amended complaint, the court EXTENDS the time for response to the amended complaint by all defendants until twenty-one (21) days after filing of process receipt and return of summons and complaint served on Dovenmuehle and Hutchens. Signed by District Judge Louise Wood Flanagan on 11/17/2014. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:14-CV-00145-FL

TOYA WILSON and HARRY SMITH
Plaintiffs
v.
LNV CORPORATION; MGC
MORTGAGE, INC.; DOVENMUEHLE
MORTGAGE, INC.; and HUTCHENS
LAW FIRM,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

ORDER

This matter is before the court on its own initiative to address several procedural deficiencies
now impeding efficient administration of justice in this case. In this matter commenced by motion
for leave to proceed in forma pauperis, United States Magistrate Judge Robert B. Jones, Jr., allowed
plaintiff Wilson to proceed in forma pauperis by order entered September 4, 2014. The court noted,
however, that the proposed complaint designated two plaintiffs, plaintiff Wilson and plaintiff Smith.
Where each plaintiff must either pay a filing fee or move to proceed in forma pauperis, and where
plaintiff Smith had done neither, the court directed plaintiff Smith to correct this deficiency by no
later than September 18, 2014. The court noted that failure to comply may result in plaintiff Smith’s
removal as a plaintiff from this action.
Plaintiffs filed an amended complaint on November 5, 2014. Plaintiff Smith, however, still
has not paid the filing fee or moved to proceed in forma pauperis, despite directive from the court
to do so. Accordingly, plaintiff Smith is DISMISSED from this action for failure to prosecute.

Plaintiff Wilson filed an amended complaint in this action on November 5, 2014, naming as
defendants the original defendants LNV Corporation (“LNV”) and MGC Mortgage, Inc., (“MGC”),
as well as two additional defendants, Dovenmuehle Mortgage, Inc., (“Dovenmuehle”), and Hutchens
Law Firm (“Hutchens”). Two days later, the original two defendants in this matter, LNV and MGC,
filed a motion to dismiss the original complaint for failure to state a claim. In light of the filing of
the amended complaint, the motion to dismiss the original complaint must be and is DENIED AS
MOOT. In the event arguments raised in the motion to dismiss may apply equally to the amended
complaint, defendants may file again a motion to dismiss in response to the amended complaint.
In filing amended complaint, plaintiff Wilson did not provide the court with proposed
summonses for issuance as to the two defendants added with the filing of the amended complaint.
On November 6, 2014, the clerk provided plaintiffs with blank summonses for return to the court.
Upon submission of completed summons to the court, the court will direct the United States Marshal
to serve summonses and a copy of the amended complaint on Dovenmuehle and Hutchens. At this
time, however, where summons has yet to be provided for Dovenmuehle and Hutchens, and those
defendants thus have not yet been served with amended complaint, the court EXTENDS the time
for response to the amended complaint by all defendants until twenty-one (21) days after filing of
process receipt and return of summons and complaint served on Dovenmuehle and Hutchens.
SO ORDERED, this the 17th day of November, 2014.

_________________________
LOUISE W. FLANAGAN
United States District Judge

2