United States District Court, E.D. California
November 18, 2014
CHRISTOPHER D. SCHNEIDER, Plaintiff,
BANK OF AMERICA N.A., BANK OF AMERICA MORTGAGE, BANK OF AMERICA HOME LOANS SERVICING LP, BALBOA INSURANCE CO., HOME RETENTION GROUP, QUALITY RETENTION GROUP, QUALITY LOAN SERVICE CORP., CLIFF COLER, DOES 1-40, Defendants
Christopher D. Schneider, Plaintiff, Pro se, Sutter Creek, CA.
For Bank of America N.A, Bank of America Home Loan Servicing LP, Balboa Insurance Co., Defendants: Alison Valerie Lippa, LEAD ATTORNEY, McGuireWoods LLP, Los Angeles, CA; Tracy Evans Moyer, LEAD ATTORNEY, McGuire Woods LLP, Los Angeles, CA.
For Bank of America Mortgage, FHLMC LBAC 173, also known as, Federal Home Loan Mortgage Corporation, Federal Home Loan Mortgage Corporation, Defendants: Alison Valerie Lippa, LEAD ATTORNEY, McGuireWoods LLP, Los Angeles, CA.
For Quality Loan Service Corp, Defendant: Matthew Bryan Learned, LEAD ATTORNEY, McCarthy and Holthus LLP, San Diego, CA.
ORDER AND FINDINGS AND RECOMMENDATIONS
EDMUND F. BRENNAN, UNITED STATES MAGISTRATE JUDGE.
On November 12, 2014, this case was before the court on plaintiff's motions for a protective order and for sanctions against Quality Loan Service Corporation (" Quality"), ECF No. 150;  motion for default judgment against defendants Bank of America, N.A. (" BANA"), Balboa Insurance Company (" Balboa"), and Federal Home Loan Mortgage Corporation (" FHLMC"), ECF No. 146; and for approval for the filing of a lis pendens, ECF No. 139. Attorney Matthew Learned appeared on behalf of defendant Quality and attorney Alison V. Lippa appeared on behalf of defendants BANA, Balboa, and FHLMC. Plaintiff appeared pro se. For the reasons stated on the record, plaintiff's motion for a protective order is granted; plaintiff's motion for approval for the filing of lis pendens is granted; plaintiff's motion for sanctions is denied; and it is recommended that plaintiff's motion for default judgment be denied.
I. Motion for Default
On October 1, 2014, plaintiff filed an amended motion for default judgment against BANA, Balboa, and FHLMC, arguing that he is entitled to default judgment against these defendants because they failed to timely file an answer to his second amended complaint. ECF No. 146. Prior to plaintiff filing his motion, defendants Quality, BANA, Balboa, and FHLMC moved to dismiss plaintiff's second amended complaint. ECF Nos. 93, 96; see also ECF No. 100. The previously assigned district judge granted in part and denied in part Quality, BANA, and Balboa's motions on May 21, 2014, and granted in part and denied in part FHLMC's motion on July 11, 2014. ECF Nos. 132, 138. Plaintiff was not given leave to file a third amended complaint. Id. Although the motions were resolved by July 11, 2014, defendants BANA, Balboa, and FHLMC did not file their answers to the second amended complaint until November 10, 2014, two days before the hearing on plaintiff's motion for default. See Fed.R.Civ.P. 12(a) (providing that a responsive pleading must be served within 21 days).
Federal Rule of Civil Procedure 55(a) provides that " [w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Entry of default against a defendant cuts off that defendant's right to appear in the action or to present evidence. Clifton v. Tomb, 21 F.2d 893, 897 (4th Cir. 1927).
Here, BANA, Balboa, and FHLMC have appeared in this action and manifested their intent to defend against plaintiff's claims. Indeed, these defendants moved to dismiss plaintiff's second amended complaint. Although they belatedly filed their answers, the court cannot enter default once a defendant has filed a responsive pleading. See Horton v. Sierra Conservation Ctr., 2010 WL 743849, at *1 (E.D. Cal. Mar. 1, 2010) (citing Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1317 (11th Cir. 2002); Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685, 689 (9th Cir. 1988) (no default can be entered if defendant has filed a response indicating its intent to defend the action)).
Accordingly, plaintiff's motion for default judgment must be denied.
II. Order to Show Cause Regarding Defendants Bank of America Mortgage and Home Retention Group
Defendants Bank of America Mortgage and Home Retention Group have not yet appeared in this action. However, it is unclear from the docket whether service of process was ever completed as to these defendants. For that reason, plaintiff was ordered to show cause why these defendants should not be dismissed for failure to effect service of process within the time prescribed by Rule 4(m) and/or for failure to comply with the Federal Rules of Civil Procedure and this court's previous orders. ECF No. 123 at 54-56. The order explained to plaintiff that if he filed a third amended complaint and did not name Bank of America Mortgage or Home Retention Group as defendants, he need not respond to the order to show cause. However, if plaintiff proceeded with the claims alleged in the second amended complaint, he was required to respond to the order to show cause. Plaintiff was also admonished that failure to comply with the order to show cause may result in a recommendation that Bank of America Mortgage and Home Retention Group and/or this action be dismissed for failure to follow court orders, for failure to effect service of process within the time prescribed by Rule 4(m) and/or for lack of prosecution under Rule 41(b). ECF No. 123 at 54-56.
As noted above, the district judge's last order addressing the March 26, 2013 findings and recommendations was issued on July 11, 2014. See ECF No. 138. Accordingly, plaintiff was required to respond to the order to show cause by no later than August 25, 2014. That deadline has now passed and plaintiff has failed to file a response. Therefore, defendants Bank of America Mortgage and Home Retention Group should be dismissed pursuant to Rule 4(m) as well as for failure to prosecute and to comply with court orders. See Fed.R.Civ.P. 41(b); E.D. Cal. L.R. 110.
Accordingly, it is hereby ORDERED that:
1. Plaintiff's motion for a protective order, ECF No. 150, is granted. Plaintiff shall have 30 days from the date of the parties' Rule 26(f) conference to serve his response to Quality's discovery requests.
2. Plaintiff's motion for sanctions, ECF No. 150, is denied;
3. Plaintiff's motion for an order shortening time is denied as moot; and
4. Plaintiff's motion for approval for the filing of lis pendens is granted.
Further, it is RECOMMENDED that:
1. Plaintiff's motion for default judgment against BANA, Balboa, and FHLMC, ECF No. 146, be denied,
2. The motion for a clerk's entry of the default of BANA, Balboa, and FHLMC, ECF No. 149, be denied; and
3. Bank of America Mortgage and Home Retention Group be dismissed from this action based on plaintiff's failure to prosecute and follow this court's order and Local Rules.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned " Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).