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Tom Klepac, Joy Klepac v. Ctx Mortgage Company

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


November 17, 2011

TOM KLEPAC, JOY KLEPAC,
PLAINTIFFS,
v.
CTX MORTGAGE COMPANY, LLC; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; AMERICAN SECURITIES COMPANY, AS TRUSTEE; WELLS FARGO BANK, N.A.; QUALITY LOAN SERVICE CORP.; LSI TITLE AGENCY INC.; AURORA LOAN SERVICES, INC.; AND DOES 1-100, INCLUSIVE,
DEFENDANTS.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER CONTINUING STATUS (PRETRIAL SCHEDULING) CONFERENCE; FED. R. CIV. P. 4(M) NOTICE

The Joint Status Report filed November 14, 2011 reveals this case is not ready to be scheduled. (ECF No. 40.) Therefore, the Status (Pretrial Scheduling) Conference scheduled for hearing on November 28, 2011 is continued to April 9, 2012 at 9:00 a.m. A further joint status report shall be filed no later than fourteen (14) days prior.

Further, Plaintiffs were required to respond to an Order filed July 11, 2011, by either filing proof that Defendant American Securities Company was served with process or a document showing good cause for Plaintiffs' failure to serve this Defendant within the 120-day period prescribed in Federal Rule of Civil Procedure ("Rule") 4(m). (ECF No. 23.) On July 18, 2011, Plaintiffs filed a "Proof of Service of Summons and Complaint" which states American Securities Company was served by mailing the summons and complaint to the agent for service of process by certified mail, return receipt requested. (ECF No. 24.)

California Civil Procedure Code section 415.30(c) prescribes that service by mail "is deemed complete on the date a written acknowledgment of receipt of summons is executed, if such acknowledgment thereafter is returned to the sender." Since Plaintiffs' Proof of Service does not state that American Securities Company returned a written acknowledgment, Plaintiffs have not shown that they have effected service on American Securities Company. Therefore, Plaintiffs are notified under Rule 4(m) that to avoid dismissal of Defendant American Securities Company, on or before November 30, 2011, Plaintiffs shall file proof of service for this defendant or a sufficient explanation why service was not effected within Rule 4(m)'s prescribed service period.

IT IS SO ORDERED.

20111117

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