Perez v. Bank of America, N.A.

Opinion

2 3 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 MARIA PEREZ, Case No. 21-cv-01977-BAS-AHG 11 Plaintiff, ORDER DISMISSING 12 v. DEFENDANTS SHELLPOINT MORTGAGE AND MORTGAGE 13 BANK OF AMERICA, N.A., et al., ELECTRONIC REGISTRATION SYSTEM BECAUSE OF Defendants. PLAINTIFF’S FAILURE TO 14 PROSECUTE AND OBEY COURT ORDERS 15 16 On May 19, 2022, the Court set a hearing and issued a tentative order to address 17 Plaintiff’s failure to prosecute her case against Defendants Ocwen Loan Servicing 18 (“Ocwen”), Shellpoint Mortgage (“Shellpoint”), and Mortgage Electronic Registration 19 System (“MERS”). (ECF No. 22.) On June 6, 2022, the Court held the hearing and 20 counsel for all parties appeared, except for Defendants Shellpoint Mortgage and MERS. 21 Consistent with its ruling at the hearing, the Court now adopts portions of its tentative 22 order (ECF No. 22) as modified and set forth below.1 23 On two occasions this Court has ordered Plaintiff to show cause why the case should 24 not be dismissed for failure to prosecute as to certain Defendants.2 (OSC 1, ECF No. 17; 25 OSC 2, ECF No. 19.) In each OSC, the Court ordered Plaintiff to file proofs of service on 26 1 Ocwen filed a Motion to Dismiss on June 1, 2022 (ECF No. 23) and requested at the hearing 27 that the Court resolve its motion. Thus, the Court does not adopt its tentative with respect to Ocwen. 28 2 These Defendants are ZBS Law, LLP; Statebridge Company, LLC; Wilmington Savings Fund 1 the docket in accordance with the Federal Rules of Civil Procedure (the “Rules”). (Id.) 2 See Fed. R. Civ. P. 4(l) (“Unless service is waived, proof of service must be made to the 3 court . . . by the server’s affidavit.”). Instead of complying with this Court’s orders and 4 the Rules, Plaintiff filed two declarations from her counsel, Mr. Aldana, neither of which 5 constitute a sufficient showing of cause. (See, e.g., OSC 1 (“Plaintiff may adequately show 6 cause by filing a proof of service showing that the Defendants have been served with the 7 summons and complaint[.]”).) Despite Plaintiff’s failure to prove service, at the time of 8 this Order, six Defendants have responded to the Complaint and are therefore not at issue.3 9 Not only has Plaintiff failed to file proofs of service, but she also failed to prosecute 10 her case by declining to move for entry of default against the Defendants who have not 11 responded to her Complaint. In OSC 2, this Court ordered that “[o]n or before May 11, 12 2022, if the case has not resolved by settlement, Plaintiff is ordered to show cause by filing 13 proofs of service and moving for entry of default against any defendant who has not timely 14 filed a responsive pleading or motion.” (OSC 2.) The Court named the six Defendants 15 that had not yet responded to the Complaint and warned Plaintiff that “failure to comply 16 with this Order will result in dismissal of the case against any Defendant who has not been 17 timely served, or for whom default has not been requested.” (Id.) Thus, the Court finds 18 that dismissal of Defendants Shellpoint and MERS is warranted. Although neither 19 Defendant responded to the Complaint, Plaintiff failed to prosecute in violation of multiple 20 court orders. First, she failed to file proofs of service and then she failed to move for 21 entries of default. See Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 22 (9th Cir. 2005) (stating courts may dismiss an action pursuant to Federal Rule of Civil 23 Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute or comply with the Federal 24 Rules of Civil Procedure or the court’s orders). 25 3 These Defendants are Bank of America, N.A. (“BANA”); America’s Wholesale Lender 26 (“AWL”); ZBS Law, LLP; Statebridge Company, LLC; Wilmington Savings Fund Society, FSB; and Ocwen. Prior to the Court’s OSCs, Defendants BANA and AWL had filed a timely Motion to Dismiss 27 (ECF No. 8), which this Court will resolve in a separate order. As mentioned above, Defendant Ocwen 28 filed a Motion to Dismiss on June 1, 2022 and requested at the hearing that this Court resolve its motion. 1 The Court therefore ORDERS that Defendants Shellpoint and MERS be 2 || DISMISSED WITH PREJUDICE.‘ 3 IT IS SO ORDERED. 4 5 || DATED: June 7, 2022 , 6 (pil A (Haphoa. 6 How. Cynthia Bashant 7 United States District Judge 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 4 On June 7, 2022, Plaintiff filed a notice of voluntary dismissal with prejudice for Defendant 28 || Shellpoint. (ECF No. 21.) Plaintiff also did not object to Defendant MERS being dismissed with prejudice. Accordingly, the Court finds that dismissal with prejudice is appropriate.