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Rodriguez v. Indymac Mortgage Services

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 10, 2010

MARIO RODRIGUEZ AND LAURA RODRIGUEZ, PLAINTIFFS,
v.
INDYMAC MORTGAGE SERVICES, A DIVISION OF ONEWEST BANK, FSB; MORTGAGEIT, INC.; MARIA AMADOR; AND DOES 1 THROUGH 10, DEFENDANTS.

The opinion of the court was delivered by: Hayes, Judge

ORDER

On February 2, 2010, Plaintiffs initiated this action by filing a Complaint in this Court. (Doc. # 1).

On August 12, 2010, the Court issued an Order stating:

This Order constitutes notice to Plaintiffs that the Court will dismiss this action without prejudice on September 3, 2010, unless, before that date, Plaintiffs file either: (1) proof that service of the summons and Complaint was timely effectuated upon each Defendant, or (2) a declaration under penalty of perjury showing good cause for failure to timely serve each Defendant, accompanied by a motion for leave to serve process outside of the 120 day period. (Doc. # 5 at 1).

On August 30, 2010, Plaintiffs filed "Proof of Service" indicating that Defendant Mortgageit, Inc. was served on August 24, 2010 and Defendant Indymac Mortgage Services was served on August 25, 2010. (Doc. # 6, 7).

As set forth in the Court's August 12, 2010 Order, Federal Rule of Civil Procedure 4 requires that a summons and complaint be served "within 120 days after the filing of the complaint." Fed. R. Civ. P. 4(m). If a plaintiff fails to serve the summons and complaint within 120 days, the court may dismiss the action without prejudice after notice to the plaintiff. See id. The August 12, 2010 Order required Plaintiffs to file either: "(1) proof that service of the summons and Complaint was timely effectuated upon each Defendant, or (2) a declaration under penalty of perjury showing good cause for failure to timely serve each Defendant, accompanied by a motion for leave to serve process outside of the 120 day period." (Doc. # 5 at 1 (emphasis added)). Plaintiffs' service on August 24, 2010 and August 25, 2010 was not timely pursuant to Rule 4(m). Plaintiffs failed to file a motion and show good cause for serving process outside of the 120 period.

IT IS HEREBY ORDERED that the Proofs of Service (Doc. # 6, 7) are STRICKEN, and this action is DISMISSED without prejudice. The Clerk of the Court shall close this case.

WILLIAM Q. HAYES United States District Judge

20100910

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