IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 12, 2012
ALISON M. ABELS, PLAINTIFF,
BANK OF AMERICA, N.A., ET AL., DEFENDANTS.
This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). On January 31, 2012, defendants Bank of America, N.A., U.S. Bank National Association, Mortgage Electronic Registration Systems, Inc., and ReconTrust Company, N.A. filed a motion to dismiss plaintiff's complaint, and noticed the motion for hearing on March 14, 2012. Dckt. No. 12.
On February 23, 2012, plaintiff filed an objection to the motion, arguing that the motion to dismiss should be denied as untimely. Dckt. No. 16. Specifically, plaintiff contends that defendant Bank of America was served on December 19, 2011 by mailing the summons and complaint to Bank of America's registered agent for service of process, yet Bank of America did not file their motion to dismiss within 21 days, as required by the Federal Rules of Civil Procedure. Id.
However, as defendants note in their reply brief, plaintiff's objection does not address service on any of the remaining defendants, and she has not filed a proof of service on any of those defendants. See Dckt. No. 20 at 3. According to the reply brief, service has not been effected on those defendants. Id. Additionally, although plaintiff contends Bank of America was served on December 19, 2011, that service does not appear to have been proper. Federal Rule of Civil Procedure 4(h)(1) provides that service may be made on a business entity by following state law or "by delivering a copy of the summons and of the complaint to . . . any . . . agent authorized by appointment or by law to receive service of process and -- if the agent is one authorized by statute and the statute so requires -- by also mailing a copy of each to the defendant . . . ." Fed. R. Civ. P. 4(h)(1); see also Fed. R. Civ. P. 4(e)(1); see also Cal. Civ. Proc. Code § 416.40 (authorizing service of a summons on an unincorporated association by delivering a copy of the summons and of the complaint to the person designated as agent for service of process in a statement filed with the Secretary of State). California Code of Civil Procedure sections 415.20, 415.30, and 415.40 provide mechanisms for serving a defendant in a manner other than personal service; however, plaintiff has not shown that service was proper under any of those provisions since she did not leave a copy of the summons and complaint at the agent's office as provided in section 415.20, she did not mail the summons with two copies of the notice of acknowledgment required by section 415.30, and she did not mail serve defendant outside of California as provided in section 415.40. See Cal. Civ. Proc. Code §§ 415.20, 415.30, 415.40.
Moreover, plaintiff has not requested that the Clerk enter the default of Bank of America, and no such default has been entered. Therefore, plaintiff's objection to the motion will be overruled, and defendants' motion to dismiss will not be denied as untimely. In light of plaintiff's pro se status, however, plaintiff will be given an opportunity to file an opposition addressing the arguments set forth in the motion to dismiss.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's objection to defendant's motion to dismiss, Dckt. No. 16, is overruled.
2. The March 14, 2012 hearing on defendants' motion to dismiss, Dckt. No. 12, is continued to April 25, 2012.
3. On or before April 11, 2012, plaintiff shall file an opposition to the motion and shall respond to the arguments set forth in the motion to dismiss.
4. Failure of plaintiff to do so may be deemed a statement of non-opposition to the motion, and may result in a recommendation that the motion be granted and/or that this action be dismissed for failure to prosecute and for failure to comply with court orders and this court's Local Rules.
5. Defendants may file a reply to plaintiff's opposition on or before April 18, 2012.
6. The status (pretrial scheduling) conference currently set for April 11, 2012 is continued to July 18, 2012.
7. On or before July 3, 2012, the parties shall file status reports, as provided in the December 5, 2011 order.
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