Opinion
CV 23-00147 PHX CDB
04-24-2023
Michael Hardin, Plaintiff, v. Wells Fargo NA, successor-by-merger to Wachovia Bank, Leonard J. McDonald, Legendary Sunset LLC, Daniel Macias, Tiffany and Bosco Law Firm, Defendants.
REPORT AND RECOMMENDATION
Camille D. Bibles, United States Magistrate Judge
TO THE HONORABLE STEPHEN M. McNAMEE:
Plaintiff, who is pro se in this matter, initiated this suit by filing a complaint in the Maricopa County Superior Court on October 6, 2022. (ECF No. 1-3 at 6). Plaintiff served Wells Fargo on December 22, 2022, and Wells Fargo removed the case to federal court on January 23, 2023. (ECF No. 1). Accordingly, Plaintiff does not proceed in forma pauperis. Plaintiff docketed an amended complaint on January 24, 2023. (ECF No. 6). On February 2, 2023, Defendants McDonald and the Tiffany & Bosco Law Firm filed a motion to dismiss all of Plaintiff's claims against these Defendants. (ECF No. 10). On February 3, 2023, Defendant Wells Fargo filed a motion to dismiss all of Plaintiff's claims against this Defendant. (ECF No. 13). Plaintiff and Defendants McDonald, Tiffany & Bosco Law Firm, and Wells Fargo have all consented to the exercise of magistrate judge jurisdiction over the matter, including the entry of final judgment.
However, Defendants Legendary Sunset LLC and Daniel Macias have not been served nor appeared in this matter and, accordingly, the case is not in full consent. Accordingly, on March 6, 2023, the Court allowed Plaintiff until April 7, 2023, to show cause why Defendants Legendary Sunset LLC and Daniel Macias should not be dismissed for Plaintiff's failure to timely serve them with a summons and a complaint. (ECF No. 23). In response to the Order to Show Cause Plaintiff asserts:
Plaintiff Michael Hardin (referred to as “Hardin”), pro se, hereby submits the following as to Parties Daniel Macias and Legendary Sunset LLC. Plaintiffs statement as to the Parties is that they conspired with Tiffany & Bosco to unlawfully sell the Hardin home without notice to the Hardin's on more than one occasion according to the records. Mr. Macias inhabits the Hardin home at this time as party in possession of an illegally sold home in the Hardin's view. The Hardin's seek the authorization of the court to file a Lis Pendens on the property at 2674 N 131st Dr Goodyear, AZ 85395. The Hardin's pray the Court agree that Participating in and benefitting from private sales that are supposed to be public cannot be allowed. Illegal sales that are private cannot be allowed. The Hardin's call for the return of their home in this lawsuit. The Hardin's pray the Court acknowledge there cannot be benefactors to an Illegal Acts by Wells Fargo falsely luring a customer to modification while an Illegal Foreclosure and Collection efforts by Tiffany and Bosco occurred with parties Legendary and Macias being part. Michael Hardin states that the records show, [t]wo quiet title deals on the Hardin home with the Defendants all, done through David Cowles then hidden by Leonard McDonald when a bankruptcy was filed. Then, in violation of the law, payments from Michael Hardin were purposefully not applied so all of the parties together to conduct an illegal foreclosure that took a families home of twenty years. [sic](ECF No. 34).
Defendants Wells Fargo, McDonald, and the Tiffany & Bosco Law Firm have moved to dismiss Plaintiff's claims, averring the claims are, inter alia, time-barred as the foreclosure sale occurred on October 16, 2016.
The same day Plaintiff filed his response to the Order to Show Cause, Plaintiff also filed a motion asking the Court to allow him additional time to serve Defendants Legendary Sunset LLC and Daniel Macias. (ECF No. 33). In that motion Plaintiff does not provide any returns of service as unexecuted, but instead simply avers: “Process Servers for Michael Hardin have attempted service on the individuals responsible for representation as statutory agents or direct party and they have purposefully evaded the same. Michael Hardin respectfully requests permission to have posted service of process be sufficient to the parties going forward.” (Id.).
Dismissal of a defendant from a civil action for failure to serve is a matter within the Court's discretion. See, e.g., Puett v. Blandford, 912 F.2d 270, 273 (9th Cir. 1990). Rule 4(m) of the Federal Rules of Civil Procedure provides:
If 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. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
The Court notes that Plaintiff did not seek an extension of the time allowed to serve Defendants Legendary Sunset LLC and Macias until after the Order to Show Cause issued and on the deadline for responding to the Order to Show Cause, which was April 7, 2023, five months after filing the complaint.
The Ninth Circuit Court of Appeals has recognized that “good cause” for the failure to timely serve a defendant means, “[a]t a minimum,” excusable neglect. See, e.g. Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991). To establish good cause for the failure to timely serve a defendant the plaintiff may be required to show: the unserved defendant received actual notice of the lawsuit; the defendant would suffer no prejudice if the plaintiff were allowed additional time for service; and the plaintiff would be “severely prejudiced if his complaint were dismissed.” Id.
Plaintiff has failed to show any excusable neglect or any good cause for the failure to serve the unserved Defendants. See Efaw v. Williams, 473 F.3d 1038 (9th Cir. 2007). Plaintiff does not provide any returns of service as unexecuted. For example, Plaintiff fails to establish any attempt at service on the statutory agent for Legendary Sunset LLC, and that information is provided in the Arizona Corporations Commission's records. Nor does Plaintiff provide any statement as to, specifically, by what means and when any process server attempted but was unable to effect personal service because of purportedly evasive maneuvers by the unserved Defendants to avoid service. Additionally, there is no indication that the unserved Defendants have had any actual notice of this lawsuit.
Furthermore, with regard to prejudice, although Plaintiff names Legendary Sunset LLC and Daniel Macias as defendants in the caption of the operative complaint, he does not mention either Defendant in any statement of fact nor does he mention these Defendants in any of his five claims for relief. The Court further notes that the pending motions to dismiss make a more-than-colorable argument that all of Plaintiff's claims are time-barred, as all of the actions giving rise to the complaint occurred more than six years ago. It also appears that the only involvement of the unserved Defendants in the actions giving rise to the complaint are that the LLC purchased the foreclosed property at a trustee's sale, and that Macias is a member and/or manager of the LLC. Accordingly, it appears Plaintiff will not be severely prejudiced if Defendants Legendary Sunset LLC and Macias are dismissed from this action.
Accordingly, IT IS RECOMMENDED that Defendants Legendary Sunset LLC and Macias, and Plaintiff's claims against these Defendants, be dismissed without prejudice for Plaintiff's failure to timely effect service on these Defendants.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b)(2), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3), Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length.
Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge.