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Marcella Rose, An Individual v. Seamless Financial Corporation Inc.

March 26, 2013

MARCELLA ROSE, AN INDIVIDUAL,
PLAINTIFF,
v.
SEAMLESS FINANCIAL CORPORATION INC., A NEVADA CORPORATION;
MICHAEL MCDEVITT, AN INDIVIDUAL; CHAD HAGOBIAN, AN INDIVIDUAL; JEAN-PIERRE RADTKE, AN INDIVIDUAL; PREMIERE CAPITAL ESCROW
INC., A CALIFORNIA CORPORATION;
LUIS ANTONIO OF STATE VENEGAS, AN INDIVIDUAL; AND DOES 1-100,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge

ORDER DENYING PLAINTIFF'S EX PARTE APPLICATION TO SERVE DEFENDANTS MICHAEL MCDEVITT, JEAN-PIERRE RADTKE, AND LUIS ANTONIO VENEGAS BY PUBLICATION; AND DEFENDANT PREMIERE CAPITAL BY SERVING ESCROW, THE CALIFORNIA SECRETARY (Doc. No. 87)

On March 18, 2013, Plaintiff Marcella Rose ("Plaintiff") filed an ex parte application requesting leave to serve Defendants Michael McDevitt ("McDevitt"), Jean Pierre-Radtke ("Radtke"), and Luis Antonio Venegas ("Venegas") by publication; and Defendant Premiere Capital Escrow, Inc., a California corporation ("Premiere") by effectuating service on the California Secretary of State. (Doc. No. 87.) Neither McDevitt, Radtke, Venegas, nor Premiere have appeared in the action.*fn1 For the reasons set forth below, the Court DENIES without prejudice Plaintiff's motion to serve McDevitt, Radtke, and Venegas by publication, and DENIES without prejudice Plaintiff's motion to serve Premiere by effectuating service on the California Secretary of State. Additionally, the Court GRANTS Plaintiff a final ninety-day (90) extension of time to effectuate service on McDevitt, Radtke, Venegas, and Premiere.

BACKGROUND

Procedural History

Plaintiff Marcella Rose is a 91-year-old woman residing in San Diego, California. The present action was originally filed on December 29, 2010 in state court against defendants Wachovia, Wells Fargo, Seamless, McDevitt, and Hagobian. (Doc. No.1.) The complaint contained six causes of action: (1) violation of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605 ("RESPA"); (2) violation of the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 ("FDCPA"); (3) violation of the California Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code §§ 1788 et seq. ("Rosenthal Act"); (4) unfair competition under California Business and Professions Code §§ 17200 . ("UCL"); (5) common law fraud and deceit; and (6) violation of the Elder Abuse and Dependent Adult Civil Protection Act, California Welfare & Institutions Code § 15610.30 ("Elder Abuse Act"). The first, second, and third causes of action were alleged solely against Wells Fargo, whereas the remaining state law causes of action were alleged against all Defendants. (Doc. No. 1.)

On February 4, 2011, Defendants removed the action to federal court on the basis of federal question jurisdiction and supplemental jurisdiction over the related state law claims. (Doc. No. 1.) On February 11, 2011, Defendant Wells Fargo filed a motion to dismiss the complaint, (Doc. No. 2), which was subsequently denied as moot after Plaintiff filed a First Amended Complaint ("FAC") on March 4, 2011. (Doc. No. 7.) Thereafter, on March 18, 2011, Wells Fargo moved to dismiss Plaintiff's FAC. (Doc. No. 13.) While Wells Fargo's motion to dismiss was pending, Wells Fargo and Wachovia entered into a good faith settlement with Plaintiff. (Doc. No. 32.) The settlement was approved by the Court on March 2, 2012, (Doc. No. 50), and the federal causes of action alleged against Wells Fargo were subsequently dismissed, (Doc. No. 56).

Plaintiff filed a Second Amended Complaint ("SAC") on April 2, 2012. (Doc. No. 53.) The SAC alleged four causes of action: (1) violation of the Elder Abuse Act; (2) common law fraud and deceit; (3) breach of fiduciary duty; and (4) unlawful, unfair, and deceptive practices under the UCL.*fn2 On May 1, 2012, Defendant Hagobian filed a motion to dismiss, (Doc. No. 59), and on June 1, 2012, Plaintiff filed a motion to remand, (Doc. No. 61). On August 1, 2012, Plaintiff filed a motion for an order extending time to serve Defendants Seamless, McDevitt, Radtke, Venegas, and Premiere, and for an order permitting limited expedited discovery of Defendants' locations. (Doc. Nos. 69, 70.) On August 23, 2012, while Plaintiff's motion for expedited limited discovery was pending, Magistrate Judge Crawford issued an order granting a ninety-day (90) extension of time to serve the non-appearing Defendants. (Doc. No. 72.) On September 10, 2012, the Court issued an order denying Plaintiffs' motion to remand, (Doc. No. 61), and granting Defendant Hagobian's motion to dismiss the SAC, (Doc. No. 59).

On October 10, 2012, Plaintiff filed the operative Third Amended Complaint ("TAC"). (Doc. No. 74.) The TAC contains four causes of action: (1) violation of the Elder Abuse Act; (2) common law fraud and deceiet; (3) breach of fiduciary duty; and (4) unlawful, unfair, and deceptive practices under UCL.*fn3 On December 4, 2012, Judge Crawford granted Plaintiff's ex parte application for an order permitting limited expedited discovery to obtain the contact information for Defendants Seamless, McDevitt, Radtke, Venegas, and Premiere. (Doc. No. 79.) Thereafter, the Court denied Defendant

Hagobian's motion to dismiss the TAC and motion for sanctions, and ordered Hagobian to respond to the TAC within thirty-days (30). (Doc. No. 84.) Hagobian filed an answer to the TAC on February 1, 2013. (Doc. No. 85.) Proof of service of the TAC on Defendant Seamless was filed on March 18, 2013. (Doc. No. 86.)

Factual Background

This action concerns claims for elder abuse, fraud, and deceitful business practices by all Defendants. (Doc. No. 74.) Specifically, Plaintiff alleges that Defendants conspired to fraudulently induce her to refinance her home, and as a result, she paid $27,000 to enter into a loan that she neither understood nor could afford. (Id. at 1-2.) Plaintiff further alleges that Defendants solicited her to refinance her home, falsified her loan application, misrepresented her income for the loan application, forged her signature, and ultimately provided her with a deceptively devised financial product. (Id. at 5-6.) Consequently, Plaintiff was eventually unable to pay the monthly loan payments and was unsuccessful at arranging further modifications to her loan. (Id. at 6-7.) After a foreclo-sure proceeding was begun against Plaintiffs' home, a short sale was arranged at the suggestion of Wachovia. (Id. at 7.) As alleged, Plaintiff lost her home and all of her savings as a result of Defendants' wrongdoing. (Id.)

DISCUSSION

Plaintiff's instant ex parte application contends she has been unable to confirm service of the summons and operative TAC on Defendants McDevitt, Radtke, Venegas, and Premiere despite reasonably diligent efforts. Accordingly, Plaintiff seeks leave to serve DefendantsMcDevitt, Radtke, and Venegas by publication; and Defendant Premiere ...


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