The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 BRIAN MARTINS, Case No.: 18-cv-01731-AJB-AHG
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Plaintiff, ORDER:
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v. (1) DISMISSING DEFENDANTS
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WITH PREJUDICE FOR LACK OF
15 NEW WEST FINANCIAL CO.; PROSECUTION FOLLOWING THE
KOERNER-MAGEE CONSULTING OCTOBER 12, 2023, NOTICED
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ENGINEERS; NORTHWEST HEARING AND
17 DEVELOPMENT COMPANY;
CAL-WESTERN RECONVEYANCE (2) CLOSING CASE
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CORP; ANTHONY CARNEVALE; and
19 DOES 1-10,
Defendants.
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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.
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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
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