James Dolan and Tamara Dolan v. Nationstar Mortgage LLC d/b/a Mr. Cooper; U.S. Bank, National Association as trustee for the Harborview Mortgage Loan Trust 2006-4 Mortgage Pass-Through Certificates

• Court: District Court, S.D. California
• Decided: December 16, 2025
• Docket: 3:25-cv-02242
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES DOLAN, and TAMARA Case No.: 25-cv-2242-GPC-BJW DOLAN, 12 ORDER DENYING DEFENDANTS’ Plaintiffs, 13 MOTION TO DISMISS v. 14 [ECF No. 6] NATIONSTAR MORTGAGE LLC d/b/a 15 MR. COOPER; U.S. BANK, NATIONAL 16 ASSOCIATION as trustee for the HARBORVIEW MORTGAGE LOAN 17 TRUST 2006-4 MORTGAGE PASS- 18 THROUGH CERTIFICATES, SERIES 2006-4; MTC FINANCIAL INC., d/b/a 19 TRUSTEE CORPS; and DOES 20 1-100, inclusive, 21 Defendants. 22 23 Before the Court is Defendants’—Nationstar Mortgage LLC, doing business as Mr. 24 Cooper, “Nationstar”; and U.S. Bank, National Association as trustee for the Harborview 25 Mortgage Loan Trust 2006-4 Mortgage Pass-Through Certificates, Series 2006-4 (“U.S 26 Bank,” together with Nationstar, “Defendants”)—motion to dismiss Plaintiffs’ complaint 27 1 pursuant to Federal Rules of Civil Procedure (“Rules”)1 12(b)(2), 12(b)(4), and 12(b)(5). 2 ECF No. 6. Plaintiffs responded in opposition to Defendants’ motion on October 30, 2025, 3 ECF No. 8, to which Defendants replied on November 10, 2025, ECF No. 10. The Court 4 finds the matter suitable for disposition without a hearing under Local Rule 7.1(d)(1). For 5 the reasons below, the Court DENIES Defendants’ motion. The Court further VACATES 6 the hearing set for December 19, 2025. 7 PROCEDURAL BACKGROUND 8 On July 17, 2025, Plaintiffs James and Tamara Dolan filed a complaint against 9 Defendants in San Diego Superior Court. ECF No. 1-3. In their complaint, Plaintiffs allege 10 claims for quiet title, negligent and intentional infliction of emotional distress, fraud, and 11 violations of California and federal statute. Id. at 2. 12 Though the initial state court summons prepared by Plaintiffs was rejected on July 13 18, 2025, a second summons was signed and conformed by Deputy Clerk G. Lopez on 14 August 7, 2025. ECF No. 8, at 2-3; ECF No. 8-2; ECF No. 8-3, at 3-4. A copy of the 15 Register of Actions for the San Diego Superior Court produced by Plaintiffs indicates that 16 the Summons was considered filed as of July 18, 2025. ECF No. 8-3, at 5; see also ECF 17 No. 8-2, at 3. In their reply, Defendants do not dispute that the San Diego Superior Court 18 accepted and issued a conformed summons on August 7, 2025. See generally ECF No. 10. 19 At some point prior to August 28, 2025, Defendants received—though they were not 20 served—a copy of Plaintiffs’ complaint. ECF No. 6, at 3. On August 28, 2025, Defendants 21 removed the action to this Court based on federal question jurisdiction. See ECF No. 1. 22 On September 4, 2025, the Parties jointly moved to extend Defendants’ time to 23 respond to Plaintiffs’ complaint. ECF No. 3. Approximately one month later, Defendants 24 25

26 1 “Rule” or “Rules” refer to the Federal Rules of Civil Procedure unless otherwise noted. 27 1 moved to dismiss Plaintiffs’ case for insufficient process, insufficient service of process, 2 and lack of personal jurisdiction. ECF No. 6. 3 On October 20, 2025, licensed process servers personally served each of the 4 removing Defendants—U.S. Bank and Nationstar—as well as non-removing Defendant 5 MTC Financial Inc., who has not yet appeared in this action, with the complaint, state court 6 summons, and notice of removal. See ECF Nos. 8-4, 8-5, 8-6. 7 LEGAL STANDARD 8 Sufficiency of service of process prior to removal is governed by state law, while 9 service after removal is governed by Federal Rules of Civil Procedure 4. Murray v. Gade, 10 No. CV 24-00005 HG-WRP, 2024 WL 1579976, at *1 (D. Haw. Apr. 11, 2024); Fed. R. 11 Civ. P. 4. “Rule 4 is a flexible one that should be liberally construed, but a federal court 12 does not have jurisdiction over a defendant unless the defendant has been served properly.” 13 Id. 14 Federal Rules of Civil Procedure 12(b)(4) and 12(b)(5) authorize dismissal based on 15 insufficient process and insufficient service of process. More specifically, a motion to 16 dismiss pursuant to Rule 12(b)(4) relates to the form of the process, while a motion under 17 Rule 12(b)(5) challenges the mode or lack of delivery of the summons and complaint. 18 Wasson v. Riverside Cnty., 237 F.R.D. 423, 424 (C.D. Cal. 2006) (citing United States v. 19 Hafner, 421 F. Supp. 2d 1220, 1223 n.3 (D.N.D. 2006)). 20 “Once a defendant challenges service, the plaintiff bears the burden of establishing 21 valid service pursuant to Federal Rule of Civil Procedure 4.” Shoup v. JAG Welding, FAB 22 & Servs., Inc., No. 24-CV-1776 JLS (AHG), 2025 WL 1208916, at *2 (S.D. Cal. Apr. 25, 23 2025). “If the plaintiff is unable to satisfy his burden of demonstrating effective service, a 24 court may either dismiss the action or quash service and allow the plaintiff to serve the 25 defendant again.” Id. (citing Stevens v. Sec. Pac. Nat'l Bank, 538 F.2d 1387, 1389 (9th Cir. 26 1976)). “Where it appears that effective service can be made and there is no unfair prejudice 27 1 to the defendant, quashing service rather than dismissing the action, and leaving the 2 plaintiff free to effect proper service, is the appropriate course.” Wick Towing, Inc. v. 3 Northland, No. C15-1864JLR, 2016 WL 3461587, at *2 (W.D. Wash. June 21, 2016). 4 Lastly, because “service of process is the means by which a court asserts its 5 jurisdiction over the person.” SEC v. Ross, 504 F.3d 1130, 1138 (9th Cir. 2007), Defendants 6 have also moved to dismiss pursuant to Rule 12(b)(2). Rule 12(b)(2) provides that “[a] 7 defendant may move, prior to trial, to dismiss the complaint for lack of personal 8 jurisdiction.” Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 9 (9th Cir. 1977). 10 DISCUSSION 11 In this case, a state court summons was issued but not served prior to Defendants’ 12 removal of the case on August 28, 2025.2 After removal, on October 20, 2025, Plaintiffs 13 served the complaint and state court summons on Defendants. ECF Nos. 8-4; 8-5. This 14 Court has not issued a new summons in this case. See generally Dkt. 15 Defendants rely on the Ninth Circuit decision in Beecher vs. Wallace to assert that a 16 “state court summons issued but not served prior to removal of the state court action to 17 federal courts” does not “retain any efficacy for further service of process after removal.” 18 381 F.2d 372, 373 (9th Cir. 1967). 19 20 2 While Defendants initially argued that no summons was ever issued by the state court 21 prior to removal, ECF No. 6, at 5, Plaintiffs counter that though the initial summons filed 22 on July 18, 2025, was rejected, a second summons was signed by the Deputy Clerk of Court and issued on August 7, 2025, see ECF No. 8, at 2-3, ECF No. 8-2; ECF No. 8-3, at 3-4. 23 Defendants do not contest Plaintiffs’ contention that a state court summons was issued as 24 of August 7, 2025, in their reply, and thus concede that argument. See Palmer v. Cognizant Tech. Sols. Corp., 2022 WL 18214014, at *31 (C.D. Cal. Oct. 27, 2022) (“Plaintiffs do not 25 respond to this contention in their Reply, which constitutes a concession of that 26 argument.”).

27 1 Defendants are correct that generally, “[w]hen a case is removed to federal court, 2 ‘[a]ll defendants properly served in the state-court action are deemed properly served in 3 the removed action, and unserved defendants must be served with a summons from the 4 federal court.’” Tehranian v. Mercedes-Benz USA, LLC, No. 8:24-CV-02037-FWS-JDE, 5 2025 WL 1543630, at *2 (C.D. Cal. Mar. 4, 2025) (quoting CMB Infrastructure Grp. IX, 6 LP v. Cobra Energy Inv. Fin., Inc., 572 F. Supp. 3d 950, 968 (D. Nev. 2021)). However, 7 the Beecher holding is more nuanced than Defendants acknowledge. Specifically, in an 8 unpublished decision, the Ninth Circuit has clarified that if “a defendant who is served with 9 a state summons after removal either initiated the removal or consented to it, and thus 10 indisputably had notice of the action prior to removal and notice that it was now a federal 11 action,” then the service limitations outlined in Beecher are “inapplicable.” Greenfield 12 Advisors LLC v. Salas, 733 F. App'x 364, 367 (9th Cir. 2018). See also Bella + Canvas, 13 LLC v. Ben Wachter Assocs., Inc., No. CV-19-8115-DMG-GJSX, 2020 WL 509170, at *1 14 n.1 (C.D. Cal. Jan. 31, 2020) (“Beecher may not apply when the defendant served with the 15 summons either initiated the removal or consented to it.”); Lazo v. E-Council Univ., No. 16 SA-CV-2202051-CJC-JDEX, 2023 WL 6785800, at *3 (C.D. Cal. Jan. 24, 2023) (quoting 17 Greenfield, 733 F. App’x at 367) (“In the Ninth Circuit, if a defendant ‘either initiated the 18 removal or consented to it, and thus indisputably had notice of the action prior to removal 19 and notice that it was now a federal action,’ that defendant may be properly served with a 20 state-court summons after removal.”); CMB Infrastructure, 572 F. Supp. 3d at 968-69 21 (same). 22 Here, the Defendants now challenging the efficacy of service are the same two 23 Defendants who initiated the removal of this action from state to federal court. See ECF 24 No. 1. Accordingly, the fact that Defendants were served with the state court summons that 25 26 27 1 was issued but not served prior to removal does not render service ineffective as to the 2 removing Defendants Nationstar and U.S. Bank.3 See Greenfield, 733 F. App’x at 367. 3 Aside from their objection to Plaintiffs’ service of a state rather than federal court 4 summons, Defendants do not otherwise challenge the sufficiency of the method or form of 5 process. See generally ECF No. 10. While Defendants emphasize that Plaintiffs served 6 Defendants with the state court summons nearly two months after Defendants removed the 7 case to federal court, ECF No. 10, at 2, they neglect to acknowledge that such a timeline is 8 within the ninety-day timeframe for service of process following removal. See Lazo, 2023 9 WL 6785800, at *3 (quoting Wickersham v. Washington, 2014 WL 3846094, at *2 (W.D. 10 Wash. Aug. 5, 2014)) (“In an action removed from state court, the [ninety]–day period to 11 serve process runs from the date of removal to federal court, rather than the date the action 12 was filed in state court.”); see also CMB Infrastructure, 572 F. Supp. 3d at 969 (explicitly 13 applying the 90-day post-removal timeline for service of process to the time for Plaintiff 14

15 3 The Court notes that, after removal to this Court by Defendants Nationstar and U.S. Bank, 16 Plaintiffs also served Defendant MTC Financial Inc., which has not yet appeared in this 17 action, with the state court summons, complaint, and notice of removal. See ECF No. 8-6. Defendant MTC Financial Inc. was not served prior to removal, nor did it initiate or consent 18 to removal. Accordingly, Defendant MTC Financial Inc. may not be properly served with 19 the state court summons issued prior to removal. See Greenfield, 733 F. App’x at 367; Beecher, 381 F.2d at 373. 20 Should Defendant MTC Financial Inc. appear and challenge the efficacy of Plaintiffs’ 21 service, the Court will be required to find that Defendant MTC Financial Inc. received 22 insufficient service of process. See Ghusar v. Park 'N Shade of Tuscon, Inc., No. 2:22-CV- 00398-TLN-JDP, 2023 WL 3794294, at *3 (E.D. Cal. June 2, 2023) (“Here, Defendant 23 was not served prior to removal, nor did they consent to removal. Additionally, Plaintiffs 24 offer no evidence suggesting Defendant received notice of the federal action other than the fact they included the notice of removal with their service of the state court summons . . . 25 This is insufficient. Service of a state court summons with a notice of removal does not 26 provide notice to a defendant of a pending federal action and thus does not satisfy the requirements of Rule 4.”). 27 1 ||to serve Defendant with a state-court summons when Defendant consented to removal). 2 ||Indeed, Plaintiffs served Defendants and filed proof of service with the Court within the 3 || ninety-day post-removal window allotted by Rule 4(m). See ECF No. 9. 4 In sum, process was both timely and sufficient. Accordingly, the Court DENIES 5 Defendants’ motion to dismiss Plaintiffs’ complaint for insufficient process and 6 ||insufficient service of process pursuant to Rules 12(b)(4) and 12(b)(5). Further, because 7 Defendants’ motion to dismiss for lack of personal jurisdiction was predicated solely on 8 ||the theory that Defendants had not been properly served, the Court also DENIES 9 || Defendants’ motion pursuant to Rule 12(b)(2). 10 CONCLUSION 11 Defendants’ motion to dismiss, ECF No. 6, is DENIED. The hearing scheduled for 12 |}December 19, 2025, is VACATED. 13 IT IS SO ORDERED. 14 ||Dated: December 16, 2025 <=

16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 25-cv-2242-GPC-BJW