Opinion
No. C 14-00015 LB
05-06-2014
ASHARFUN NISH HAFIZ, Plaintiff, v. NATIONSTAR MORTGAGE; CAL-WESTERN RECONVEYANCE, LLC, Defendants.
ORDER (1) GRANTING PLAINTIFF'S
MOTION FOR LEAVE TO FILE A
FIRST AMENDED COMPLAINT AND
SETTING A DEADLINE FOR
SERVING IT, (2) DENYING AS
MOOT NATIONWIDE'S MOTION TO
DISMISS, AND (3) CONTINUING
THE CASE MANAGEMENT
CONFERENCE
[Re: ECF No. 17]
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. Plaintiff alleged 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. Plaintiff apparently served Nationstar with the complaint and summons, as it appeared and moved to dismiss Plaintiff's complaint, see Motion, ECF No. 8, but Plaintiff does not appear to have served Cal-Western, see generally Docket.
Citations are to the Electronic Case File ("ECF") with pin cites to the electronically-generated page numbers at the top of the document.
Nationstar filed its motion on January 29, 2014 and served it on Plaintiff by mail. Plaintiff never filed an opposition within the time allowed, and Nationstar, then, had no occasion to file a reply. Thus, Nationstar's motion is the only brief to be considered by the court.
Plaintiff did not timely file an opposition to Nationstar's motion. Instead, on April 17, 2014—well after the time for doing so under Federal Rule of Civil Procedure 15(a)—Plaintiff filed a First Amended Complaint, which was accompanied by a memorandum in support of an unfiled motion for leave to amend the complaint. See FAC, ECF No. 17; Memo, ECF No. 18. Plaintiff's proposed First Amended Complaint re-alleges the FDCPA claim and also alleges new claims for declaratory relief, intentional misrepresentation, injunctive relief, fraud, unjust enrichment, cancellation of instruments, and quiet title. See FAC, ECF No. 17. It re-names Nationstar and Cal-Western as defendants, but it also names four new ones: Deutsche Bank Trust Company as Trustee for RALI Series 2006-Q04; Residential Accredit Loans, Inc.; RBS; and GMAC-RFC Ltd. See id. Nevertheless, as Nationstar does not oppose it, see Statement of Non-Opposition, ECF No. 19, and given the interests of judicial economy and because leave to amend is freely given, the court construes Plaintiff's filings as a motion for leave to file a First Amended Complaint and finds good cause to GRANT it.
The court's previous statements regarding service and consent still apply, though. As the court explained, under Federal Rule of Civil Procedure 4(m), absent good cause, a plaintiff has 120 days from filing the complaint to serve defendants. And under 28 U.S.C. § 636(c), the court needs the consent of all served parties to decide dispositive motions, such as a motion to dismiss. See 28 U.S.C. § 636(c). An unserved defendant, however, 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 still is unclear whether Plaintiff has served Cal-Western, and the court presumes, given the lack of filed proofs of service, that Plaintiff has not yet served Deutsche Bank Trust Company as Trustee for RALI Series 2006-Q04, Residential Accredit Loans, Inc., RBS, and GMAC-RFC Ltd. In this situation, the court ORDERS Plaintiff to serve Cal-Western, Deutsche Bank Trust Company as Trustee for RALI Series 2006-Q04, Residential Accredit Loans, Inc., RBS, and GMAC-RFC Ltd. with the First Amended Complaint by May 30, 2014. Plaintiff SHALL file proofs of service no later than June 2, 2014. If Plaintiff does not serve these Defendants by June 2, 2014, the court may dismiss them from this action without prejudice pursuant to Federal Rule of Civil Procedure 4(m). Alternatively, if Plaintiff decides not to proceed against Cal-Western or any of the new Defendants, Plaintiff should file a voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).
Accordingly, the court DENIES AS MOOT Nationstar's motion to dismiss. Nationstar shall respond to the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12. In addition, the court CONTINUES the initial case management conference from May 29, 2014 to June 26, 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 June 19, 2014.
IT IS SO ORDERED.
__________
LAUREL BEELER
United States Magistrate Judge