Free Motion to Continue - District Court of California - California

Case 5:08-cv-02328-RS

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KRALIK & JACOBS LLP LOIS MOONITZ JACOBS (SBN 106537) e-mail: [email protected] 301 North Lake Avenue, Suite 202 Pasadena, California 91101 Tel.: 626 844-3505 Fax: 626 844-7643 Attorneys for Plaintiff IndyMac Bank, F.S.B., and Federal Deposit Insurance Corporation, as Conservator of IndyMac Federal Bank, FSB, successor in interest to IndyMac Bank, F.S.B. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA INDYMAC BANK, F.S.B., a federally ) ) chartered savings bank, ) ) ) Plaintiff, ) ) vs. ) ) LOC D. NGUYEN, an individual, ) LINH T. NGUYEN, an individual, and ) ) DOES 1 through 50, inclusive, ) ) ) Defendants. ) Case No.: C08-02328 RS REQUEST FOR CONTINUANCE OF INITIAL CASE MANAGEMENT CONFERENCE CMC Date: Time: Courtroom: Sept. 3, 2008 2:30 p.m. 4, 5th Floor, SJ

[[Proposed] Order Submitted Herewith]

Plaintiff IndyMac Bank, F.S.B. ("IndyMac") 1 , hereby respectfully requests that this Court continue the Initial Case Management Conference in this action,

On July 11, 2008, IndyMac Bank, F.S.B. was closed by the Office of Thrift Supervision, and the Federal Deposit Insurance Corporation was appointed as receiver (the "Receiver"). On the same date, a new institution, IndyMac Federal Bank, FSB ("New IndyMac"), was chartered, and all of the insured deposits and -1REQUEST FOR CONTINUANCE OF INITIAL CASE MANAGEMENT CONFERENCE

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currently scheduled for September 3, 2008, to October 22, 2008, or to a date thereafter that may be available to the Court. Despite having made diligent efforts to serve Defendants Loc D. Nguyen and Linh T. Nguyen ("Defendants") with process since the Complaint in this action was filed on May 6, 2008, IndyMac has thus far been unable to complete service on either of them. Counsel for IndyMac has spoken several times over the past three months with Defendants' attorney, Lan D. Nguyen, about this situation. Mr. Nguyen, who is a member of State Bar of California (State Bar No. 194638) but resides in Portland, Oregon, has informed IndyMac's counsel that Defendants are attempting to locate counsel in the Bay Area to represent them in this action but have not done so far. Although IndyMac's counsel has requested on several occasions that Mr. Nguyen obtain the Defendants' authorization to accept service on their behalf, they agreed to do so. (See email from Lois Jacobs to Lan Nguyen dated July 30, 2008, attached hereto as Exhibit A). Although Counsel Nguyen informed IndyMac's counsel that Defendants were out of the country for several weeks shortly after the Complaint was filed, they apparently returned to the United States in mid-July but have evaded all service attempts by IndyMac during the past six weeks. These efforts have included numerous attempts to serve Defendants personally at their home address and at their last known work addresses. IndyMac has also attempted substituted

substantially all of the assets of the Receiver, including the loan that is the subject matter of this litigation, were transferred to New IndyMac, which was then placed into conservatorship, and the FDIC was appointed as conservator (the "Conservator"). The Conservator intends to seek leave to intervene or substitute itself as the real party in interest in this action pursuant to Federal Rule of Civil Procedure 24 and 25. -2REQUEST FOR CONTINUANCE OF INITIAL CASE MANAGEMENT CONFERENCE

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service on Defendant Loc Nguyen. IndyMac plans to attempt personal service on Defendants one further time but anticipates that it will thereafter be necessary to bring a motion to serve Defendants by publication. As a result, IndyMac has been unable to conduct a Rule 26(f) conference, to exchange initial disclosures as required by Rule 26(a), or to meet and confer with counsel for Defendants regarding ADR procedures as required by this Court Local Rule 16-8. Accordingly, it appears that a Case Management Conference at this junction would be unproductive and waste judicial time and resources. IndyMac therefore requests that this Court continue the Initial Case Management Conference in this action from September 3, 2008, to October 22, 2008, or another available date thereafter. Dated: August 26, 2008 Respectfully submitted, KRALIK & JACOBS LLP

By:

/s/ Lois Moonitz Jacobs Lois Moonitz Jacobs Attorneys for Plaintiff IndyMac Bank, F.S.B. and Federal Deposit Insurance Corporation, as Conservator of IndyMac Federal Bank, FSB, successor in interest to IndyMac Bank, F.S.B.

-3REQUEST FOR CONTINUANCE OF INITIAL CASE MANAGEMENT CONFERENCE

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