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Rene Aguinaldo; et al v. Ocwen Loan Servicing LLC; et al

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


April 3, 2012

RENE AGUINALDO; ET AL., PLAINTIFFS,
v.
OCWEN LOAN SERVICING LLC; ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

** E-filed April 3, 2012 **

NOT FOR CITATION

ORDER DENYING DEFENDANT'S REQUEST FOR REASSIGNMENT AND SETTING DEADLINE FOR CONSENT OR DECLINATION TO PROCEED BEFORE A UNITED STATES MAGISTRATE JUDGE

Plaintiffs Rene and Grace Aguinaldo sued OCWEN Loan Servicing, LLC ("OCWEN") in Santa Clara County Superior Court for breach of contract, fraud, negligence and emotional distress 18 arising out of defendant's foreclosure of plaintiffs' residence. Dkt. No. 1, Exh. A ("Complaint").

OCWEN removed the action to this court on March 20, 2012, and consented to the undersigned's 20 jurisdiction on March 23. Dkt. Nos. 1 ("Notice of Removal"); 4 ("Consent"). On March 30, it filed a 21 motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). Dkt. No. 6. Simultaneously, 22

OCWEN also filed a "request for reassignment," allegedly pursuant to Civil L. R. 73-1(a), because 23 plaintiffs have not yet filed either a consent or declination form. Dkt. No. 9. 24

OCWEN's Request for Reassignment is denied. Civil Local Rule 73-1 states that "unless the magistrate judge has set a different deadline," the parties shall "either file written consent to the 26 jurisdiction of the magistrate judge, or request reassignment to a district judge" within 7 days of the 27 filing of a motion requiring consent to proceed before a magistrate judge. Civ. L.R. 73-1(a). Here, 28 defendant consented to magistrate judge jurisdiction on March 23, filed a motion to dismiss on March 30 and simultaneously requested reassignment based on plaintiffs' failure to file a consent or 2 declination form. Defendant apparently misreads Local Rule 73-1(a)(2). The rule requires each party 3 to either consent to the magistrate's jurisdiction or request reassignment (i.e. decline the magistrate 4 judge's jurisdiction). Thus, each party need only consent or decline. OCWEN does not need to 5 request reassignment based on the fact that plaintiffs have not yet consented or declined, and even if 6 it did need to make such a request, plaintiffs' statutory time to consent has not yet elapsed. Civil L. 7 R. 73-1(a)(2) gives the parties 7 days from the date the motion is filed to consent or decline. That 7 8 day period has not yet elapsed. Accordingly, the request is DENIED as untimely and unnecessary. 9

In addition, the court now sets a new deadline for plaintiffs to consent or decline the undersigned's jurisdiction. All parties who have not yet done so shall, no later than April 13, 2012, file either (1) a Consent to Proceed before a United States Magistrate Judge or (2) a Declination to United States District Court

Proceed before a Magistrate Judge and Request for Reassignment to a United States District Judge. 13

See N.D. Cal. Civ. R. 73-1. The consent and declination forms are available at the Clerk's Office 14 and may also be obtained from the court's website at http://www.cand.uscourts.gov. 15 16

For the Northern District of California

IT IS SO ORDERED.

C12-01393 HRL Notice will be electronically mailed to: Mimi Trieu mimi@trieucounsel.com Christian Chapman cchapman@houser-law.com Eric Houser ehouser@houser-law.com Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program.

20120403

© 1992-2012 VersusLaw Inc.



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