PARRISH v. Roundpoint Mortgage Servicing Corporation et al
ORDER granting 2 Motion to Dismiss Complaint(); denying 14 Motion for Service by Publication Ordered by US DISTRICT JUDGE CLAY D LAND on 9/29/2017 (glg)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ROUNDPOINT MORTGAGE SERVICING
CORPORATION and MORTGAGE
CASE NO. 4:17-CV-136 (CDL)
O R D E R
Plaintiff originally filed this action against Defendants
in the Superior Court of Muscogee County and requested that they
Pleadings 21–22, ECF No. 1-1.
Defendants declined and removed
the case to this Court on June 21, 2017.
Notice of Removal, ECF
Plaintiff’s complaint, arguing, inter alia, that Plaintiff had
failed to perfect service.
Defs.’ Mot. to Dismiss 4, ECF No. 2-
The Court then ordered Plaintiff to serve Defendants as
Plaintiff that failure to do so would result in dismissal of his
Order Granting Mot. to Stay, ECF No. 8.
days have elapsed since Plaintiff’s case was removed to this
Court, and Plaintiff has not yet filed proof that he served
Plaintiff has, however, filed a return of
summons indicating that he served Defendants’ counsel of record
and a motion to declare service perfected on that ground or, in
(ECF No. 14) and grants Defendants’ motion to dismiss (ECF No.
The Federal Rules of Civil Procedure prescribe the proper
They require a plaintiff to “serve process on a
officer or authorized agent, or by complying with any means
allowed under state law.”
Hunt v. Nationstar Mortg., LLC, 684
F. App’x 938, 940 (11th Cir. 2017) (per curiam) (citing Fed. R.
Civ. P. 4(h)(1)).
“When service of process is challenged, [the
plaintiff] must bear the burden of establishing its validity.”
Reeves v. Wilbanks, 542 F. App’x 742, 746 (11th Cir. 2013) (per
Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d 434,
435 (5th Cir. 1981)).
Plaintiff has failed to establish that he
The only evidence Plaintiff has submitted to the Court to
show that he validly served Defendants is a return of service
indicating that his process server personally served Defendants’
counsel of record.
See Return of Service, ECF No. 12.
Georgia law, a plaintiff must personally serve a corporation’s
“president or other officer . . . , a managing agent thereof, or
a registered agent thereof,” if the action is against “a foreign
O.C.G.A. § 9-11-4(e)(1)(A); see also Cherokee Warehouses, Inc.
v. Babb Lumber Co., 535 S.E.2d 254, 255 (Ga. Ct. App. 2000)
delivered to an individual listed in § 9-11-4(e)(1)(A)).
service is required.”
Estate of Thurman v. Dodaro, 313 S.E.2d
722, 725 (Ga. Ct. App. 1984).
It follows that Plaintiff has not
perfected valid service on Defendants under Georgia law.
will service upon a party’s attorney suffice under federal law.
Ransom v. Brennan, 437 F.2d 513, 519 (5th Cir. 1971) (“[S]ervice
of process is not effectual on an attorney solely by reason of
his capacity as attorney.”).1
Further, “[a] defendant’s actual
notice is not sufficient to cure defectively executed service.”
Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007) (per
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981)
(en banc), the Eleventh Circuit adopted as binding precedent all
decisions of the former Fifth Circuit handed down prior to the close
of business on September 30, 1981.
permission to serve Defendants by publication.
by publication raises due process concerns and is a ‘notoriously
unreliable means of actually informing interested parties about
statute and ‘substantial compliance’ is insufficient.”
v. Addo, 800 S.E.2d 1, 4 (Ga. Ct. App. 2017) (first quoting
Baxley v. Baldwin, 631 S.E.2d 506, 509 (Ga. Ct. App. 2006); and
Under Georgia law, an order for service by publication may only
be granted if it appears “by affidavit, to the satisfaction of
the judge,” that “the person on whom service is to be made . . .
O.C.G.A. § 9-11-4(f)(1)(A).2
prerequisite for allowing such service . . . is a showing that
Georgia law also allows service by publication if the person on whom
service is to be made resides outside the state or has departed from
the state if “the present address of the party is unknown.” O.C.G.A.
§ 9-11-4(f)(1)(A). The simple fact that Plaintiff originally mailed a
copy of the complaint to both Defendants at their corporate
headquarters indicates that this provision does not apply.
available channel of information.”
170, 174 (Ga. Ct. App. 2001).
Floyd v. Gore, 555 S.E.2d
The Court finds that Plaintiff
has failed to carry this burden.
Although Plaintiff’s motion contains various arguments as
to why he has been unable to serve Defendants within this state,
Plaintiff has not presented the Court with any evidence, such as
an affidavit, showing that he exercised reasonable diligence to
indicate that Plaintiff would have been able to personally serve
Defendants’ had he tried.
Because the Plaintiff has failed to
personally serving the Defendants or their registered agents,
his request for service by publication is denied.
Plaintiff’s motion (ECF No. 14) is denied in its entirety,
Plaintiff’s complaint is dismissed without prejudice.
IT IS SO ORDERED, this 29th day of September, 2017.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
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