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Daniels v. Comunity Lending, Inc.

United States District Court, S.D. California

May 14, 2014

ELLINGTON DANIELS and DIANE DANIELS, Plaintiffs,
v.
COMUNITY LENDING, INC.; NEW CENTURY MORTGAGE; THE BANK OF AMERICA HOME LOANS; COUNTRYWIDE HOME LOANS; BANK OF AMERICA, N.A.; GINNIE MAE; THE BANK OF NEW YORK; MORTGAGE ELECTRONIC REGISTRATIONS SYSTEMS (MERS); and RECONTRUST COMPANY, N.A., Defendants.

ORDER

WILLIAM Q. HAYES, District Judge.

The matters before to Court are (1) the Motion for Leave to File Second Amended Complaint (ECF No. 64); (2) the Motion to Strike Plaintiffs' "Response in Opposition to Motion to Dismiss Leave to File Second Amended Complaint" (ECF No. 75); and (3) the failure to effectuate service on Defendants ComUnity Lending, Inc. and New Century Mortgage.

I. Background

On January 6, 2014, the Court issued an Order granting a motion to dismiss filed by Defendants Bank of New York Mellon, Bank of America, N.A., Countrywide Home Loans, Inc., ReconTrust Company, N.A., and Mortgage Electronic Registration Systems, Inc. (collectively, "moving Defendants"), and dismissing the First Amended Complaint without prejudice as to the moving Defendants. (ECF No. 60). In the same Order, the Court ordered Plaintiffs to file a proof of service within 120 days indicating that Defendants ComUnity Lending, Inc., New Century Mortgage, and Ginnie Mae (collectively, "unserved Defendants") have been served with the First Amended Complaint pursuant to Federal Rule of Civil Procedure 4. Id. at 14. The Court ordered the U.S. Marshal to serve the unserved Defendants as directed by Plaintiffs pursuant to Rule 4(c)(3).

On February 4, 2014, Plaintiffs, proceeding pro se and in forma pauperis, filed a Motion for Leave to File Second Amended Complaint. (ECF No. 64). Attached to the motion is a proposed second amended complaint and exhibits. Id. at 4-49.

On February 6, 2014, the U.S. Marshal filed unexecuted returns of service indicating that Defendants ComUnity Lending, Inc. and New Century Mortgage were no longer at the address provided by Plaintiffs and no forwarding address was known. (ECF Nos. 67, 68).

On February 24, 2014, the moving Defendants filed an opposition to the Motion for Leave to File Second Amended Complaint. (ECF No. 64). The moving Defendants contend that the proposed amendment is futile.

On March 10, 2014, Plaintiffs filed a "Response in Opposition to the Motion to Dismiss Leave to File Second Amended Complaint." (ECF No. 74). Plaintiffs assert that "[t]he Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint should be denied." Id. at 3.

On March 18, 2014, the moving Defendants filed the "Motion to Strike Plaintiffs' Response in Opposition to the Motion to Dismiss Leave to File Second Amended Complaint.'" (ECF No. 75). The moving Defendants contend that Plaintiffs' response brief filed on March 10, 2014 "appear[s] to oppose a motion to dismiss, " which "is not before the Court." (ECF No. 75-1 at 2). The moving Defendants contend that Plaintiffs' response brief "should be deemed a reply in support of their motion for leave to amend, and it should be stricken as untimely." Id.

On April 18, 2014, the U.S. Marshal filed an executed return of service indicating that Defendant Ginnie Mae was served. (ECF 77).

II. Discussion

A. Service on ComUnity Lending, Inc. and New Century Mortgage

Plaintiffs have failed to effectuate service on Defendants ComUnity Lending, Inc. and New Century Mortgage as ordered by the Court in the January 6, 2014 Order. "It is plaintiff's responsibility to provide accurate addresses for defendants in order that they can be served by the United States Marshal." Furnace v. Knuckles, No. 09-6075-MMC, 2011 WL 3809770 at *2 (N.D. Cal. Aug. 29, 2011); see also Petty v. Shojaei, No. 12-1220-JAK, 2013 WL 5890136, at *15 (C.D. Cal. Oct. 31, 2013) (collecting cases). Federal Rule of Civil of Procedure 4(m) provides that "[i]f a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time." Fed.R.Civ.P. 4(m). This Order constitutes notice to Plaintiffs that the Court will dismiss this action without prejudice as to Defendants ComUnity Lending, Inc. and New Century Mortgage on June 2, 2014, unless, before that date, Plaintiffs file a declaration under penalty of perjury showing good cause for failure to timely serve Defendants ComUnity Lending, Inc. and New Century Mortgage, accompanied by a motion for leave to serve process outside of the 120-day period.

B. Motion for Leave to File Second Amended Complaint

Federal Rule of Civil Procedure 15 mandates that leave to amend "be freely given when justice so requires." Fed.R.Civ.P. 15(a). "This policy is to be applied with extreme liberality." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (quotation omitted). In determining whether to allow an amendment, a court considers whether there is "undue delay, " "bad faith, " "undue prejudice to the opposing party, " or "futility of amendment." Foman v. Davis, 371 U.S. 178, 182 (1962). "Not all of the [ Foman ] factors merit equal weight.... [I]t is the consideration of prejudice to the opposing party that carries the greatest weight." Eminence Capital, 316 F.3d at 1052 (citation omitted). "The party opposing amendment bears the burden of showing prejudice." DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). "Absent prejudice, or a strong showing of any of the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend." Eminence Capital, 316 F.3d at 1052.

After review of the Motion for Leave to File Second Amended Complaint and the filings of the parties, the Court concludes that the moving Defendants have not made a sufficiently strong showing of the Foman factors to overcome the presumption under Rule 15(a) in favor of granting leave to amend. See Eminence Capital, 316 F.3d at 1052. The Court will defer consideration of any challenge to the merits of the proposed second amended complaint until after the amended pleading is filed. See Netbula v. Distinct Corp., 212 F.R.D. 534, 539 (N.D. Cal. 2003) ("Ordinarily, courts will defer consideration of challenges to the merits of a proposed amended pleading until after leave to amend is granted and the amended pleading is filed."). The Motion for Leave to File Second Amended Complaint is granted, and the Motion to Strike Plaintiffs' "Response in Opposition to the Motion to Dismiss Leave to File Second Amended Complaint" is denied.

III. Conclusion

IT IS HEREBY ORDERED that the Court will dismiss this action without prejudice as to Defendants ComUnity Lending, Inc. and New Century Mortgage on June 2, 2014, unless, before that date, Plaintiffs file a declaration under penalty of perjury showing good cause for failure to timely serve Defendants ComUnity Lending, Inc. and New Century Mortgage, accompanied by a motion for leave to serve process outside of the 120-day period.

IT IS FURTHER ORDERED that Motion for Leave to File Second Amended Complaint is GRANTED (ECF No. 64), and the Motion to Strike Plaintiffs' "Response in Opposition to the Motion to Dismiss Leave to File Second Amended Complaint" is DENIED (ECF No. 75). The Clerk of the Court shall file the document entitled "Plaintiffs' Second Amended Complaint" (ECF No. 64 at 4-49) as a new docket entry, and this document will be construed as the Second Amended Complaint and the operative pleading in this case. The moving Defendants shall respond to the Second Amended Complaint no later than fourteen (14) days from the date this Order is filed. See Fed.R.Civ.P. 15(a)(3).


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