Ward et al v. JP Morgan Chase Bank et al

Filing 32

ORDER granting 19 Motion to Dismiss the Complaint. Plaintiffs shall file an Amended Complaint on or before 11/7/2013. Signed by Judge James I. Cohn on 10/18/2013. (ns)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-61554-CIV-COHN/SELTZER
CLYDE WARD, CLYDE MCPHATTER, LEROY
WILLIAMS, and MAURICE SYMONETTE,
Plaintiffs,
v.
JP MORGAN CHASE BANK, LOAN CITY
MORTGAGE, WASHINGTON MUTUAL BANK,
MORTGAGE ELECTRONICS REGISTRATION
SYSTEM, and WASHINGTON MUTUAL
SECURITIES,
Defendants.
/
ORDER ON MOTION TO DISMISS
THIS CAUSE is before the Court upon the Motion to Dismiss the Complaint
[DE 19] ("Motion") of Defendants JPMorgan Chase Bank, N.A. ("Chase") and Mortgage
Electronic Registration System, Inc. ("MERS," together with Chase the "Movants"). The
Court has considered the Motion, Plaintiffs' Responses [DE 24, 25, 28], and Movants'
Reply [DE 30], and is otherwise advised in the premises.
I.

BACKGROUND

This action relates to a residential mortgage encumbering a parcel of real
property at 2920 N.E. 55th Place, Fort Lauderdale, Florida (the "Property"). See DE 1;
DE 1-2 at 1. The Property has been the subject of a lengthy and oft-delayed
foreclosure proceeding pending since 2007. DE 19 at 2–3; DE 19-1. On July 18, 2013,
Plaintiffs filed the instant action contesting the foreclosure as illegal and seeking
injunctive relief prohibiting the foreclosure, a declaration that the underlying debt be

declared void, restitution, a declaration to quiet title of the Property, $5 million in
damages, and other varied relief. DE 1 at 37–38.
On September 12, 2013, Plaintiffs filed proofs of service on Defendants Chase,
MERS, and Washington Mutual Securities. Plaintiffs indicated that they had served
summonses upon Chase, MERS, and Washington Mutual Securities on August 19, 14,
and 21, respectively. DE 16–18. Plaintiffs stated that service was accomplished by
certified mail to each Defendant. Id. On September 17, 2013, Movants moved to
dismiss the Complaint, arguing that it fails to satisfy the applicable pleading standards
and that Plaintiffs had failed to serve Defendants properly. See generally DE 19.
II.

DISCUSSION

A. Failure to Satisfy Pleading Standards
Federal Rule of Civil Procedure 8(a)(2), which sets forth the applicable standard
for notice pleading, requires a pleading to contain "a short and plain statement of the
claim showing that the pleader is entitled to relief." The Court may read complaints by
pro se plaintiffs, such as Plaintiffs herein, more liberally than those prepared by
attorneys. See Osahar v. U.S. Postal Serv., 297 F. App'x 863, 864 (11th Cir. 2008) (per
curiam). Nevertheless, pro se plaintiffs remain obligated to allege sufficient facts to
support a claim for relief and to give the other parties notice of the bases for their
claims. Id.
Plaintiffs' Complaint in this action falls far short of the pleading requirements of
Rule 8. The 39-page Complaint begins on a promising note, with a cover page listing
what appear to be 11 discrete causes of action. DE 1 at 1. By the third page, however,
the Complaint devolves into a lengthy, rambling, and largely indecipherable missive.
See DE 1 at 3–36. Though the Complaint contains brief bursts of clarity, the majority of
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the Complaint casts allegations of wrongdoing in all directions. Various enumerated
causes of action recite mere legal conclusions and direct the reader to sift through the
remainder of the Complaint, or its 32 pages of confusing and out-of-order exhibits, to
guess which particular facts support the claims. For example, Plaintiffs' Tenth Cause of
Action, seeking $5 million in damages for intentional infliction of emotional distress,
"re-alleges and incorporates by reference" the entirety of the Complaint's prior
allegations, and proceeds to assert in conclusory manner that the "acts and omissions
of the defendants [a]nd each of them[] constitute extreme and outrageous conduct . . .
with reckless [d]isregard as to the effect on Plaintiff[s]" warranting the relief requested.
DE 1 ¶¶ 72–77. These sorts of allegations fail to link each cause of action to its factual
predicates, and bury what may be kernels of viable claims "beneath innumerable pages
of rambling irrelevancies." Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001)
(per curiam). Such "shotgun pleading" imposes unjustifiable burdens on the Court and
Defendants. The Court will dismiss the Complaint with leave to replead on this basis.
See United States ex rel. Atkins v. McInteer, 470 F.3d 1350, 1354 n.6 (11th Cir. 2006)
("When faced with a shotgun pleading, the trial court . . . ought to require the party to file
a repleader.").
B. Insufficient Service
Federal Rule of Civil Procedure 4(h) governs service of process on a corporation.
Under Rule 4(h), a plaintiff may serve a corporation in two ways. First, a plaintiff may
serve a corporation by "delivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or any other agent authorized . . . to receive
service of process and—if the agent is one authorized by statute and the statute so
requires—by also mailing a copy of each to the defendant." Fed. R. Civ. P. 4(h)(1)(B).
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Alternatively, a plaintiff may serve a corporation as allowed in the state where the
district court is located or where service is made. Fed. R. Civ. P. 4(e)(1), (h)(1)(A).
Because Plaintiffs mailed the summonses in this action, and thus did not
personally deliver copies to officers or other agents of Defendants, service was not
properly made under Rule 4(h)(1)(B). See Dyer v. Wal-Mart Stores, Inc., 318 F. App'x
843, 844 (11th Cir. 2009) (per curiam). The Court will therefore look to Rule 4(h)(1)(A)
and 4(e) to determine whether the mailing of the summonses was effective service
where the Court is located—in Florida—or under state law where service was made.
Plaintiff served Defendants Chase and Washington Mutual Securities by certified mail to
addresses in New York. DE 16 & 18. Plaintiffs served Defendant MERS by certified
mail to an address in Illinois. DE 17. Neither Florida, New York, nor Illinois state law
allow for service of a summons on a corporation via certified mail. Dyer, 318 F. App'x
at 844; Jordan v. Forfeiture Support Assocs., 928 F. Supp. 2d 588, 596 (E.D.N.Y.
2013); 735 Ill. Comp. Stat. 5/2-204; 24 Illinois Jurisprudence: Civil Procedure § 2:20
(2011). Plaintiffs have therefore failed to effect proper service of process upon
Defendants.1
Plaintiffs' failure to serve Defendants, however, does not justify dismissal of this
action. Rule 4(m) requires service within 120 days of the filing of a complaint. Plaintiffs
filed the Complaint on July 18, 2013. DE 1. Plaintiffs could therefore serve Defendants
on or before November 15, 2013, to avoid dismissal for failure of service. See Fed. R.
Civ. P. 4(m). Moreover, Plaintiffs are proceeding in forma pauperis herein (see DE 4)
and may rely upon the United States Marshal to perform service. Fed. R. Civ. P.
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Because Plaintiffs have failed to properly serve Defendants, the Court will deny
Plaintiffs' pending Amended Motion to Uphold Plaintiffs' Motion for Default [DE 27].
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4(c)(3). Therefore, upon Plaintiffs' filing of an Amended Complaint, the Court will direct
the United States Marshal to serve the necessary materials upon Defendants.
III. CONCLUSION
In accordance with the foregoing, it is ORDERED AND ADJUDGED as follows:
1. The Motion to Dismiss the Complaint [DE 19] is GRANTED.
2. The Complaint [DE 1] is DISMISSED without prejudice.
3. Plaintiffs are granted leave to file an Amended Complaint to conform with Rule 8
of the Federal Rules of Civil Procedure. Plaintiffs shall file their Amended
Complaint on or before November 7, 2013. Failure to timely file an Amended
Complaint shall result in the closing of this case.
4. Plaintiffs' Amended Motion to Uphold Plaintiffs' Motion for Default [DE 27] is
DENIED.
5. Defendants' Motion to Stay Discovery Pending Ruling on Defendants' Motion to
Dismiss the Complaint [DE 31] is DENIED as moot.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 18th day of October, 2013.

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Copies provided to:
Counsel of record via CM/ECF
Clyde Ward (pro se)
2920 N.E. 55th Place
Fort Lauderdale, Florida 33308
Clyde McPhatter (pro se)
2920 N.E. 55th Place
Fort Lauderdale, Florida 33308
Leroy Williams (pro se)
2920 N.E. 55th Place
Fort Lauderdale, Florida 33308
Maurice Symonette (pro se)
2920 N.E. 55th Place
Fort Lauderdale, Florida 33308

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