UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
April 26, 2011
STEVEN LEISHER, AN INDIVIDUAL,
WACHOVIA MORTGAGE, INC., A BUSINESS ENTITY OF UNKNOWN FORM; NDEX WEST, LLC, A BUSINESS ENTITY OF UNKNOWN FORM; WORLD SAVINGS BANK, FSB; WELLS FARGO BANK, N.A.; AND ALL PERSONS UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFF'S TITLE, OR CLOUD ON PLAINTIFF'S TITLE THERETO, AND DOES 1 TO 20, INCLUSIVE, DEFENDANTS.
The opinion of the court was delivered by: Hayes, Judge
The matters before the Court are the Motion to Dismiss Plaintiff's Complaint for Failure to Comply with Court's Orders, filed by Defendants Wachovia Mortgage, Inc., World Savings Bank, FSB and Wells Fargo Bank, N.A. (ECF No. 11), and the Court's March 15, 2011 Order to Show Cause why Defendant NDEX West, LLC should not be dismissed for failure to effect service (ECF No. 10).
On October 8, 2010, Plaintiff Steven Leisher, whose is represented by counsel, initiated this action by filing a Complaint in San Diego County Superior Court. (ECF No. 1, Ex. A).
On November 5, 2010, Defendants Wachovia Mortgage, Inc., World Savings Bank, FSB and Wells Fargo Bank, N.A. removed this action to this Court. (ECF No. 1). The Notice of Removal states that Defendant NDEX West, LLC ("NDEX") is a nominal defendant who had not yet been served. See id. at 3-4.
On January 12, 2011, the Court granted the motion to dismiss filed by the removing Defendants. (ECF No. 9). Pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court dismissed the Complaint without prejudice as to the moving Defendants and ordered: "No later than thirty (30) days from the date of this Order, Plaintiff may file a motion for leave to amend the Complaint, accompanied by a proposed first amended complaint." Id. at 17.
On March 15, 2011, the Court issued an Order to Show Cause which stated:
Plaintiff has not filed a proof of service as to the sole remaining Defendant, NDEX....
This Order constitutes notice to Plaintiff that the Court will dismiss this action without prejudice pursuant to [Federal] Rule [of Civil Procedure] 4(m) on April 11, 2011, unless, no later than that date, Plaintiff files: (1) proof that service was timely effectuated, or (2) a declaration under penalty of perjury showing good cause for failure to timely serve NDEX, accompanied by a motion for leave to serve process outside of the 120 day period. (ECF No. 10 at 2).
On March 24, 2011, the removing Defendants filed the pending Motion to Dismiss. (ECF No. 11). The removing Defendants move for an order dismissing this action with prejudice pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with the Court's January 12, 2011 Order granting Plaintiff thirty days to file a motion for leave to amend the Complaint.
The docket reflects that Plaintiff has not filed a response to the March 15, 2011 Order to Show Cause or an opposition to the March 24, 2011 Motion to Dismiss.
Pursuant to Federal Rule of Civil Procedure 41(b), a court may dismiss an action with prejudice when a plaintiff fails to timely amend following an order granting a Rule 12(b)(6) motion. See Yourish v. California Amplifier, 191 F.3d 983, 992 (9th Cir. 1999).
After considering the relevant factors, the Court finds that "the public's interest in expeditious resolution of litigation," "the court's need to manage its docket," and "the risk of prejudice to the defendants" weigh strongly in favor of granting the Motion to Dismiss. Id. at 990. Pursuant to Rule 41(b), the Motion to Dismiss is granted. As to the moving Defendants, this action is dismissed with prejudice.
As to Defendant NDEX, this action is dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m) for failure to timely effect service.
CONCLUSION IT IS HEREBY ORDERED that the Motion to Dismiss is GRANTED. (ECF No. 11). As to Defendants Wachovia Mortgage, Inc., World Savings Bank, FSB and Wells Fargo Bank, N.A., this action is DISMISSED WITH PREJUDICE. As to Defendant NDEX West, LLC , this action is DISMISSED WITHOUT PREJUDICE.
WILLIAM Q. HAYES United States District Judge
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