Harry v. Merril Lynch Credit Services
- Proceeding
- district
- Area
- civil
- Panel
- Larry Alan Burns (author)
Analysis
The court granted Defendant PHH Mortgage's motion to dismiss because Plaintiffs failed to file a timely opposition after being warned that failure to do so would be deemed consent. The court dismissed Plaintiffs' claims against PHH Mortgage with prejudice and warned that it would dismiss any remaining defendants without prejudice if not served by March 1, 2020.
| What the court decided | The model |
|---|---|
Motion to Dismiss granted; Claims against PHH Mortgage dismissed with prejudice“As such, PHH Mortgage’s Motion to Dismiss is GRANTED and Plaintiffs’ claims against PHH Mortgage are DISMISSED WITH PREJUDICE.” | agree with court The court applied Local Rule 7.1(f)(3)(C), which allows a court to deem a motion granted if the opposing party fails to respond after notice. The order recites that the court specifically cautioned the plaintiffs that failure to file an opposition would be deemed consent to the motion being granted. Since the plaintiffs failed to respond after this specific warning, the dismissal with prejudice is procedurally sound under the cited local rule and the cited Ninth Circuit authority regarding pro se litigants. |
Warning regarding service of remaining defendants“If the remaining defendants are not served by that date, this Court will dismiss any non-served defendants without prejudice.” | agree with court · fact finding unsupported The court correctly identifies that the time to serve under Rule 4(m) restarts upon removal. However, the order contains a significant factual error in the deadline date. The case was removed on December 2, 2019. Under Rule 4(m), plaintiffs have 90 days from the date of filing (or removal) to serve. 90 days from December 2, 2019, is March 1, 2020. The order states the deadline is 'March 1, 2019,' which is in the past (before the case was even filed in federal court). This is a clerical error that renders the specific deadline stated in the order impossible to meet as written, though the intent (March 1, 2020) is clear from the context of the removal date. |
The order itself: sound with gaps — The reasoning for the dismissal of PHH Mortgage is sound, relying on the local rule and appropriate Ninth Circuit precedent for deeming a motion granted due to failure to respond. However, the order contains a glaring clerical error in the service deadline, stating 'March 1, 2019' instead of 'March 1, 2020.' While the legal principle regarding the restart of the service clock upon removal is correct, the specific application of the date is factually impossible as written, creating a gap in the clarity of the order's directive to the plaintiffs.
How this analysis was made · dispute it
possible bias inconsistent with cited authorityOpinion
1 2 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 HERBERT S. HARRY, et al., Case No.: 19cv2289-LAB (BGS) 10 Plaintiffs, ORDER GRANTING MOTION TO 11 v. DISMISS [Dkt. 3]; 12 MERRILL LYNCH CREDIT SERVICES, ORDER RE: SERVICE et al., 13 Defendants. 1 14 5 Plaintiffs Herbert and Karen Harry originally brought this suit in San Diego County 16 Superior Court on October 23, 2019. Their complaint alleges various causes of action 17 against the defendants—all financial-services companies—related to the servicing and 18 refinancing of Plaintiffs’ mortgage. On December 2, 2019, Defendant PHH Mortgage 19 removed the case to this Court and then moved to dismiss Plaintiffs’ complaint. A hearing 20 on that motion was set for February 3, 2020. Plaintiffs did not file a timely opposition to 21 PHH’s motion, so, on January 28, 2020, the Court vacated the hearing and instructed 22 Plaintiffs to file an opposition (or notice of non-opposition) within one week. The Court 23 specifically cautioned that “[f]ailure to file an opposition will be deemed consent to the 24 motion being granted.” See L.R. 7.1(f)(3)(C). The time for Plaintiffs to file an opposition 25 has (again) come and gone, but they still have not filed an opposition. As such, PHH 26 Mortgage’s Motion to Dismiss is GRANTED and Plaintiffs’ claims against PHH Mortgage 27 are DISMISSED WITH PREJUDICE. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 4 1995) (affirming a district court’s decision to dismiss with prejudice a pro se plaintiff's 2 || claims where, despite being “given ample time to respond,” that plaintiff failed to timely 3, || respond to a motion to dismiss.”). 4 The Court also cautions that the time for Plaintiffs to properly serve the remaining 5, || Defendants is running out. A review of the dockets—both from this Court and the state 6 || Court—suggests that Plaintiffs have not yet served any defendant other than PHH 7 Mortgage. The time for service restarts upon removal, which means that Plaintiffs have 8 until March 1, 2019 to properly serve the remaining defendants. See Fed. R. Civ. P. 4(m); 9 Workman v. Bissessar, 275 F. Supp. 3d 263, 269 (D.D.C. 2017) (“[T]he time to effect 40 service specified in [Rule] 4(m) starts to run upon removal to the federal district court, not 44 the date the action was originated in state court.) (quotation marks omitted). If the 42 remaining defendants are not served by that date, this Court will dismiss any non-served 13 defendants without prejudice. 44 IT IS SO ORDERED.
15 ||Dated: February 10, 2020 am / Af. (4, WY Hon. Larry Alan Burns 16 Chief United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28