Martins v. New West Investment Group

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRIAN MARTINS, Case No.: 18-cv-01731-AJB-AHG

12 Plaintiff, ORDER: 13 v. (1) DISMISSING DEFENDANTS 14 WITH PREJUDICE FOR LACK OF 15 NEW WEST FINANCIAL CO.; PROSECUTION FOLLOWING THE KOERNER-MAGEE CONSULTING OCTOBER 12, 2023, NOTICED 16 ENGINEERS; NORTHWEST HEARING AND 17 DEVELOPMENT COMPANY; CAL-WESTERN RECONVEYANCE (2) CLOSING CASE 18 CORP; ANTHONY CARNEVALE; and 19 DOES 1-10, Defendants. 20

21 As explained on the record during the October 12, 2023 noticed hearing and set forth 22 herein, the Court DISMISSES WITH PREJUDICE Defendants New West Financial Co., 23 Koerner-Magee Consulting Engineers, Northwest Development Company, Cal Western 24 Reconveyance Corp, Anthony Carnevale, and Does 1-10, for lack of prosecution pursuant 25 to Federal Rule of Civil Procedure 41(b). 26 For additional context, the Court memorializes below the relevant timeline with 27 respect to Plaintiff Brian Martins’ (“Plaintiff”) prosecution of this case. 28 1 I. THE COMPLAINT 2 Plaintiff filed suit in 2018. Then, on April 15, 2019, he filed a First Amended 3 Complaint (“FAC”), the operative complaint, naming twenty-one defendants. (Doc. No. 4 13.) Upon Plaintiff’s request for additional time to serve the defendants, the Court granted 5 Plaintiff up to and including August 30, 2019 to effectuate service. (Doc. Nos. 14, 17.) 6 Over the last several years, the Court has dismissed sixteen of the twenty-one defendants 7 identified in the FAC pursuant to Orders on motions to dismiss, a motion for clarification, 8 and motion for summary judgment. 9 II. PREVIOUSLY DISMISSED DEFENDANTS 10 On March 30, 2020, the Court granted motions to dismiss and dismissed without 11 leave to amend Plaintiff’s claims against the below defendants. (Doc. No. 101.) 12 1. New West Investment Group 6. Oak Tree Escrow 13 2. Gregory M. Brown, Sr. 7. Gary Halbert 14 3. Gregory Brown, Jr. 8. Pedro Orso-Delgado 15 4. Robert J. Holland 9. Jeff Tamares 16 5. Bobbi Pearson 10. Chicago Title Co. 17 On January 8, 2021, the Court granted a motion for clarification by the below 18 defendants, explaining that its prior order on the motion to dismiss extends to them because 19 they had filed an appropriate notice of joinder to the motion to dismiss. (Doc. No. 125.) 20 11. Steven Cresswell 13. Melanie Kush 21 12. Scott Johnson 14. Keith Till 22 On September 26, 2023, the Court granted the below defendants’ motion for 23 summary judgment. (Doc. No. 188.) 24 15. Jackie Josephson 16. Jay Knohl 25 III. REMAINING DEFENDANTS 26 On September 27, 2023, after a review of the case docket revealed no activity with 27 respect to the five remaining (and non-appearing) defendants in this action—New West 28 Financial Co., Koerner-Magee Consulting Engineers, Northwest Development Company, 1 Cal Western Reconveyance Corp, and Anthony Carnevale—the Court issued a Notice of 2 Hearing regarding their dismissal for want of prosecution. (Doc. No. 190.) The notice 3 informed Plaintiff of the October 12, 2023 hearing date and warned him that failure to 4 appear at the hearing would result in dismissal of the action for failure to prosecute. (Id.) 5 The Court mailed the hearing notice to Plaintiff, and there is no indication that the mail 6 was returned as undeliverable or otherwise not received by Plaintiff. (Id.) 7 Plaintiff did not appear at the scheduled hearing. (Doc. No. 191.) Having reviewed 8 the record and recounting the foregoing procedural history on the record, the Court made 9 the following findings. 10 As to New West Financial Co., Koerner-Magee Consulting Engineers, and Anthony 11 Carnevale, the record shows no summons returned executed as to these defendants. 12 Plaintiff had until August 30, 2019 to effectuate service on these defendants. (Doc. No. 13 17.) There is no indication he did so. Plaintiff’s proof of service is more than four years 14 overdue, and he failed to appear for the hearing. The Court thus found Plaintiff failed to 15 serve New West Financial Co., Koerner-Magee Consulting Engineers, and Anthony 16 Carnevale. 17 As to Northwest Development Company, Plaintiff filed proof of service on this 18 defendant, but despite this defendant’s non-appearance, failed to pursue an entry of default 19 and default judgment against it. (Doc. No. 29.) 20 As to Cal-Western Reconveyance Corp., Plaintiff filed proof of service on this 21 defendant, obtained a clerk entry of default for its non-appearance, but failed to pursue a 22 motion for default motion judgment against it. (Doc. Nos. 84, 99.) 23 IV. CONCLUSION 24 Accordingly, because Plaintiff failed to appear at the noticed hearing or otherwise 25 explain the lack of prosecution as to New West Financial Co., Koerner-Magee Consulting 26 Engineers, Northwest Development Company, Cal Western Reconveyance Corp, Anthony 27 Carnevale for over four years, the Court DISMISSES them WITH PREJUDICE from 28 this action. See Fed. R. Civ. P. 41(b). 1 Lastly, because no defendants other than fictitious, unidentified, unserved 2 ||defendants such as Does I-10 remain, the Court finds dismissal of Does 1-10 with 3 || prejudice appropriate. See Urias v. Quiroz, No. CV 95-1932 H(BTM), 1995 WL 776704, 4 *2 (S.D. Cal. Oct. 27, 1995) (“Where appropriate, this court has the power to dismiss 5 || fictitious persons from a complaint sua sponte) (citing Craig v. United States, 413 F.2d 6 || 854, 856 (9th Cir. 1969)); see also Fed. R. Civ. P. 41(b). The Clerk of Court is DIRECTED 7 enter judgment accordingly and close this case. 8 IT IS SO ORDERED. 9 Dated: October 13, 2023 © 10 Hon, Anthony J.Battaglia 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28