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Cudberto Chavez v. America's Wholesale Lender

UNITED STATES DISTRICT COURT Northern District of California Oakland Division


June 7, 2011

CUDBERTO CHAVEZ,
PLAINTIFF,
v.
AMERICA'S WHOLESALE LENDER, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Laurel Beeler United States Magistrate Judge

On March 25, 2011, Plaintiff Cudberto Chavez filed a complaint in San Mateo County Superior For the Northern District of California For the Northern District of California Court against Defendants America's Wholesale Lender; Efficient Lending; Mortgage Electronic 18 Registration Systems, Inc. (MERS); BAC Home Loans Servicing, LP (erroneously sued as BAC 19 Home Loans Services, LP); and the Bank of New York Mellon. Complaint, ECF No. 1 at 6-37.*fn1 All Defendants except Efficient Lending joined in removing the case from state court on April 27, 2011. 21 Notice of Removal, ECF No. 1 at 1-4. Mr. Chavez filed a motion to remand the case back to state 22 court on May 17, 2011. Motion to Remand, ECF No. 10. All Defendants except Efficient Lending 23 filed an opposition to the motion to remand on June 2, 2011. Opposition, ECF No. 14. Oral 24 argument on Mr. Chavez's motion to remand is scheduled for June 23, 2011. 25 All parties except Efficient Lending have appeared and consented to this court's jurisdiction.

ORDER CONTINUING HEARING ON PLAINTIFF'S MOTION TO REMAND AND DIRECTING PLAINTIFF TO FILE PROOF OF SERVICE FOR UNSERVED DEFENDANT

However, Mr. Chavez has not filed a proof of service for Efficient Lending and it has neither 2 appeared in this case nor consented to this court's jurisdiction. Absent consent of all the parties, this 3 court cannot rule on Mr. Chavez's pending motion to remand. See 28 U.S.C. § 636(b) & (c). Under 4 Rule 4(m), plaintiffs have 120 days in which to serve a defendant with the complaint. Fed. R. Civ. 5 P. 4(m). Thus, Mr. Chavez has until July 23, 2011 to serve Efficient Lending. To permit Mr. 6 Chavez time to serve the remaining defendant, the court HEREBY CONTINUES oral argument on 7 his pending motion to remand to August 11, 2011 at 11:00 a.m. The current briefing schedule shall 8 remain unchanged. 9 The court ORDERS Mr. Chavez to serve Efficient Lending no later than July 23, 2011. Once he 10 serves it, Mr. Chavez must promptly file a proof of service with the court. If he fails to serve 11 Efficient Lending by July 23, Mr. Chavez risks dismissal without prejudice of his claims against 12 Efficient Lending unless he shows good cause for an extension of the service deadline. Fed. R. Civ.13 P. 4(m).

IT IS SO ORDERED.


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