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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, ...


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