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Hafiz v. Nationstar Mortgage

United States District Court, N.D. California, San Francisco Division

March 5, 2014

ASHARFUN NISH HAFIZ, Plaintiff,
v.
NATIONSTAR MORTGAGE; CAL-WESTERN RECONVEYANCE, LLC, Defendants.

ORDER (1) CONTINUING THE HEARING ON NATIONSTAR'S MOTION TO DISMISS AND THE INITIAL CASE MANAGEMENT CONFERENCE, (2) GRANTING PLAINTIFF'S AMENDED MOTION FOR PERMISSION TO FILE A LIS PENDENS, AND (3) DENYING PLAINTIFF'S MOTION FOR PERMISSION TO FILE ELECTRONICALLY [Re: ECF Nos. 5, 7, 8, 13]

LAUREL BEELER, Magistrate Judge.

On January 2, 2014, Plaintiff Asharfun Nish Hafiz, who is proceeding pro se, filed a complaint against two Defendants: Nationstar Mortgage ("Nationstar") and Cal-Western Reconveyance, LLC ("Cal-Western"). See Complaint, ECF No. 1.[1] Plaintiff alleges that Defendants violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, and committed negligence, in relation to their foreclosure of her property. See id. at 2, 7-8. This order addresses in turn below several case management issues that need to be resolved.

I. THE COURT NEEDS THE CONSENT OF ALL SERVED PARTIES TO DECIDE NATIONSTAR'S MOTION

Plaintiff apparently served Nationstar with the complaint and summons, as it has appeared and moved to dismiss Plaintiff's complaint.[2] See Motion, ECF No. 8. The court cannot tell whether Plaintiff served Cal-Western because it has not appeared in this action and Plaintiff has not filed any proof of service or an executed summons. See generally Docket. And while Plaintiff and Nationstar have consented to the undersigned's jurisdiction, Cal-Western has not (because it has not appeared). See Consent (Plaintiff), ECF No. 6; Consent (Nationstar), ECF No. 12.

Under 28 U.S.C. § 636(c), the court needs the consent of all served parties to decide the pending motion to dismiss. See 28 U.S.C. § 636(c). An unserved defendant is not a party under 28 U.S.C. § 636(c). See Ornelas v. De Frantz, C 00-1067 JCS, 2000 WL 973684, at *2 n.2 (N.D. Cal. June 29, 2000) (citing Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995)); cf. United States v. Real Property, 135 F.3d 1312, 1316 (9th Cir. 1997) (holding that the consent of an individual who was not a party was not a precondition to the magistrate judge's jurisdiction). It is unclear whether Plaintiff has served Cal-Western. And under Federal of Civil Procedure 4(m), absent good cause, Plaintiff has 120 days to serve Defendants, which means that Plaintiff must serve Cal-Western by May 2, 2014. Plaintiff must do so by May 2, 2014 (if Plaintiff has not already done so) and must file a proof of service as soon as she does and in any event no later than May 3, 2014. If Plaintiff does not serve Cal-Western by May 2, 2014, the court may dismiss Cal-Western from this action without prejudice pursuant to Rule 4(m). Alternatively, if Plaintiff decides not to proceed against Cal-Western, Plaintiff should file a voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).

Accordingly, the court CONTINUES the hearing on Nationstar's motion to dismiss from March 20, 2014 to May 15, 2014 at 9:30 a.m. in Courtroom C, 15th Floor, United States District Court, 450 Golden Gate Avenue, San Francisco, California, 94102. If Plaintiff files a voluntary dismissal of Cal-Western, the court will consider hearing Nationstar's motion to dismiss sooner than May 15, 2014. In light of the continuance of the hearing on Nationstar's motion to dismiss, the court also CONTINUES the initial case management conference from April 3, 2014 to May 29, 2014 at 11:00 a.m. in Courtroom C, 15th Floor, United States District Court, 450 Golden Gate Avenue, San Francisco, California, 94102. The parties shall file a joint case management conference statement no later than May 22, 2014.

II. THE COURT GRANTS PLAINTIFF'S AMENDED MOTION FOR PERMISSION TO FILE A LIS PENDENS

On January 21, 2014, Plaintiff filed a motion for permission to file a lis pendens.[3] Original Motion, ECF No. 5. On January 27, 2014, Plaintiff filed an amended motion that adds a more detailed description of the property. Amended Motion, ECF No. 7. The amended motion supercedes the original motion.

"A lis pendens is a recorded document giving constructive notice that an action has been filed affecting title to or right to possession of the real property described in the notice.'" Farahani v. Cal-Western Reconveyance Corp., No. C09-0194 JF (RS), 2009 WL 1309732, at *2 (N.D. Cal. May 8, 2009) (citing Urez Corp. v. Super. Ct., 190 Cal.App.3d1141, 1144 (1987)). "The practical effect of a lis pendens is to cloud the property's title and prevent its transfer until the litigation is resolved or the lis pendens is expunged or released." Id. (citing Malcom v. Super. Ct., 29 Cal.3d 518, 523 (1981)). The notice of lis pendens must contain: (1) the "names of all parties to the action, " Cal. Code Civ. Proc. § 405.20; (2) "a description of the property affected by the action, " id.; and (3) the signature of an attorney of record or court approval where plaintiffs are proceeding pro se, Cal. Code Civ. Proc. § 405.21.

Here, although Plaintiff did not file, as an exhibit to the motion or amended motion, the proposed notice of lis pendens, the court will allow Plaintiff to file a lis pendens in relation to this action, which involves a real property claim.[4] In the notice that Plaintiff has permission to file, Plaintiff must include the full caption of this action (including the names of all parties), the legal description of the property that Plaintiff included in the amended motion. Plaintiff also must sign the notice. Plaintiff's amended motion is GRANTED. Plaintiff is advised, however, that this approval is not to be construed as a suggestion by this court that any of the claims made in the complaint necessarily have merit, and Defendants may upon a proper showing ask for an order expunging the lis pendens and/or dismissing the complaint.

III. THE COURT DENIES PLAINTIFF'S MOTION FOR PERMISSION TO FILE ELECTRONICALLY

On February 10, 2014, Plaintiff filed a motion for permission to file electronically. Motion to File Electronically, ECF No. 13. In this District, parties appeared pro se are not allowed to file electronically without the court's permission. N.D. Cal. Civ. L.R. 5-1(b). Here, Plaintiff has not provided the court with any information to determine whether Plaintiff meets the technical requirements for e-filing. For example, the court's sample motion and order, which is available on the court's website at http://www.cand.uscourts.gov/civillitpackets, lists numerous requirements that a pro se party must meet before being allowed to file electronically. If Plaintiff can meet with these requirements, Plaintiff may file another motion (preferably one that mirrors the sample motion). For now, however, Plaintiff's motion is DENIED.

IT IS SO ORDERED.


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