You are on page 1of 4

Case 0:09-cv-01146-PJS-FLN Document 38 Filed 11/09/09 Page 1 of 4



JON E. DEVARY, Case No. 09-CV-1146 (PJS/FLN)




d/b/a America’s Wholesale Lender, a
California corporation; MORTGAGE
INC., a Delaware corporation; BANK OF
NEW YORK, as trustee for CWABS 2005-02;


There are currently two motions pending before the Court: the motion of plaintiff Jon E.

DeVary to remand this case to state court and the motion of defendants Countrywide Home

Loans, Inc. (“Countrywide”) and Mortgage Electronic Registration Systems, Inc. (“MERS”) to

dismiss for failure to state a claim. The Court held a hearing on these motions on Tuesday,

August 25, 2009.

At that hearing, the Court explained that it would need supplemental briefing on a

number of issues as well as additional evidence relevant to the question whether Countrywide

had been properly served. The Court asked DeVary and Countrywide to discuss whether they

would need some time for discovery or whether they could submit evidence through affidavits.

The Court further asked DeVary and Countrywide to notify the Court of the results of their

discussion, at which time the Court would issue a briefing schedule.

Case 0:09-cv-01146-PJS-FLN Document 38 Filed 11/09/09 Page 2 of 4

Neither DeVary nor Countrywide contacted the Court. The Court then issued an order on

September 2, 2009, requiring DeVary and Countrywide to file a joint letter (“the Letter”)

explaining how they plan to discover and submit the evidence necessary for the Court to

determine whether Countrywide was properly served. Docket No. 29. The Letter was due no

later than September 8, 2009, except in the event that the parties notified the Court in writing

that they were engaged in settlement discussions, in which case the Letter would be due no later

than October 5, 2009. After the parties filed the Letter, the Court would issue a briefing

schedule on certain issues relevant to the motion to remand and the motion to dismiss.

The parties notified the Court that they were in settlement discussions. On October 5,

2009, the date the Letter was due, the parties requested an additional thirty days to conduct

settlement discussions, which the Court granted. The additional thirty days have come and gone,

and the parties have not filed the Letter, nor have they contacted the Court to ask for more time.

The Court therefore makes the following order:

1. The parties have until December 31, 2009, to conduct discovery relating to the

question whether Countrywide was properly served with the initial complaint.

2. On January 4, 2010, each side must file and serve a brief of no more than 9,000

words addressing the following issues:

a. Whether plaintiff has waived his right to remand by filing an amended

complaint and a motion for default judgment.

b. The corporate status of America’s Wholesale Lender and the effect of that

status on the issue of whether plaintiff properly served Countrywide.

Case 0:09-cv-01146-PJS-FLN Document 38 Filed 11/09/09 Page 3 of 4

c. The relationship between Countrywide and America’s Wholesale Lender

and the effect of that relationship on the issue of whether plaintiff properly

served Countrywide.

d. Whether a defendant who has two registered agents in a state is properly

served if the plaintiff attempts to serve one of the registered agents, that

agent cannot be found at its registered office, and the plaintiff makes no

attempt to serve the other registered agent, but instead serves the

defendant through the Secretary of State.

e. Whether any disputed factual issues related to service of process must be

resolved by the Court or by a jury.

f. Whether plaintiff’s motion to remand must be granted if the parties’

submissions do not definitively resolve the question whether Countrywide

was properly served.

g. Whether Countrywide failed to comply with Fed. R. Civ. P. 81(c)(2) and,

if so, whether Countrywide thereby waived any objection to improper


h. Whether, if plaintiff failed to effect proper service on Countrywide,

plaintiff’s rescission claim under TILA against Countrywide is time-


i. With respect to plaintiff’s RESPA claim, defendants must submit a chart

setting out (1) each item of information that plaintiff requested from

Countrywide and (2) what information Countrywide provided in response.

Case 0:09-cv-01146-PJS-FLN Document 38 Filed 11/09/09 Page 4 of 4

The chart must include citations to the materials attached to plaintiff’s

amended complaint that pinpoint where each of plaintiff’s requests and

each of Countrywide’s responses may be found. If Countrywide did not

provide the requested information, Countrywide must explain why

plaintiff was not entitled to it.

j. The parties must also identify any differences between the original

complaint and the amended complaint and explain whether and how those

differences affect the disposition of the pending motion to dismiss.

The Court warns the parties that it will not extend either the December 31, 2009 deadline

for conducting service-related discovery or the January 4, 2010 deadline for submitting briefs

addressing the issues identified above. Thus, the parties should not drag their feet; instead, the

parties should commence taking discovery immediately and work diligently toward completing

the factual investigation and legal research necessary to address the above issues by January 4.

Dated: November 9, 2009 s/Patrick J. Schiltz

Patrick J. Schiltz
United States District Judge


You might also like