BECK et al v. FEDERAL NATIONAL MORTGAGE ASSOCIATION

Filing 11

ORDER granting 8 Motion to Dismiss. Ordered by US DISTRICT JUDGE CLAY D LAND on 10/27/2017. (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
CHARLES W. BECK and ANNETTE S.
BECK,

*
*

Plaintiffs,
*
vs.

CASE NO. 3:17-CV-29 (CDL)

*
FEDERAL NATIONAL MORTGAGE
ASSOCIATION,

*

Defendants.

*

O R D E R
Plaintiffs Charles W. Beck and Annette S. Beck, who are
proceeding pro se, brought this action against Defendant Federal
National Mortgage Association (“Fannie Mae”) alleging a claim
for

“mortgage

fraud.”

Compl.

at

1,

ECF

No.

1-1

at

2.

Plaintiffs filed their action in the Superior Court of Madison
County, Georgia.

Though Plaintiffs did not serve Fannie Mae

with a Summons and a copy of the Complaint, Fannie Mae learned
of

the

action

and

filed

a

notice

of

removal,

reserving

objections based on service and personal jurisdiction.

its

Although

Plaintiffs filed several documents with the Court, including a
motion and some discovery materials, Plaintiffs never filed a
proof of service establishing that they served Fannie Mae with
the Summons and a copy of the Complaint.

Fannie Mae filed a

motion to dismiss for insufficient process under Federal Rule of

Civil

Procedure

12(b)(4)

and

insufficient

service

under Federal Rule of Civil Procedure 12(b)(5).1

of

process

Plaintiffs did

not respond to the motion or present any evidence to establish
that they properly served Fannie Mae.

Accordingly, Fannie Mae’s

motion to dismiss (ECF No. 8) is granted.
“A summons must be served with a copy of the complaint.”
Fed. R. Civ. P. 4(c).

“The plaintiff is responsible for having

the summons and complaint served within the time allowed by Rule
4(m) . . . .”

Id.

Where, as here, the defendant is not served

before removal, the plaintiff must perfect service within 90
days after the notice of removal is filed.
Fed. R. Civ. P. 4(m).

28 U.S.C. § 1448;

“Service of process is a jurisdictional

requirement: a court lacks jurisdiction over the person of a
defendant when that defendant has not been served.”

Jackson v.

Warden, FCC Coleman-USP, 259 F. App’x 181, 183 (11th Cir. 2007)
(per curiam) (quoting Pardazi v. Cullman Med. Ctr., 896 F.2d
1313, 1317 (11th Cir. 1990)).
served,

then

the

Court

If a defendant is not timely

“must

dismiss

the

action

without

prejudice against that defendant or order that service be made
within a specified time.”

Fed. R. Civ. P. 4(m).

1

Fannie Mae also moved to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6). The Court may not reach the
merits of this case because, as discussed below, the Court does not
have personal jurisdiction over Fannie Mae.
See Jackson v. Warden,
FCC Coleman-USP, 259 F. App'x 181, 183 (11th Cir. 2007) (per curiam)
(finding that it was error for the district court to reach the merits
of a case where the plaintiff did not serve the defendants properly).

2

This action was removed on February 13, 2017.

Therefore,

Plaintiffs should have served Fannie Mae with the Summons and
Complaint by May 14, 2017.

Plaintiffs never filed a proof of

service to establish that they served Fannie Mae.
respond to Fannie Mae’s motion to dismiss.

They did not

And they did not

show good cause for their failure to serve Fannie Mae at any
time during the more than 250 days this action has been pending
in this Court.

For these reasons, the Court concludes that it

does not have jurisdiction over Fannie Mae, and this action is
dismissed without prejudice.
IT IS SO ORDERED, this 27th day of October, 2017.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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