PARRISH v. Roundpoint Mortgage Servicing Corporation et al

Filing 20

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)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION JOSHUA PARRISH, * Plaintiff, * vs. * ROUNDPOINT MORTGAGE SERVICING CORPORATION and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., * CASE NO. 4:17-CV-136 (CDL) * * Defendants. * O R D E R Plaintiff originally filed this action against Defendants in the Superior Court of Muscogee County and requested that they waive service. Notice of Removal Pleadings 21–22, ECF No. 1-1. Ex. 1, Superior Court Defendants declined and removed the case to this Court on June 21, 2017. Notice of Removal, ECF No. a 1. Defendants immediately filed motion to dismiss Plaintiff’s complaint, arguing, inter alia, that Plaintiff had failed to perfect service. 1. Defs.’ Mot. to Dismiss 4, ECF No. 2- The Court then ordered Plaintiff to serve Defendants as required by law within 90 days of removal and informed the Plaintiff that failure to do so would result in dismissal of his complaint. Order Granting Mot. to Stay, ECF No. 8. Over 90 days have elapsed since Plaintiff’s case was removed to this Court, and Plaintiff has not yet filed proof that he served either Defendant. 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 the alternative, reasons to explained order below, service the by Court publication. denies For Plaintiff’s the motion (ECF No. 14) and grants Defendants’ motion to dismiss (ECF No. 2). DISCUSSION The Federal Rules of Civil Procedure prescribe the proper methods in federal corporation. corporation court for perfecting service on a They require a plaintiff to “serve process on a by delivering the summons and complaint to an 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 curiam) (alteration in original) (quoting Aetna Bus. Credit, Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d 434, 435 (5th Cir. 1981)). effected valid Plaintiff has failed to establish that he service on either federal law. 2 Defendant under Georgia or 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. Under 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 corporation authorized to transact business in this state.” 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) (holding that, when available, service must be personally delivered to an individual listed in § 9-11-4(e)(1)(A)). “[s]ervice on an attorney service is required.” is not permitted where But personal 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. Nor 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 1 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. 3 curiam). The Court Plaintiff has failed Court also thus finds to on effect the current valid record service on that either defendant. The declines the Plaintiff’s permission to serve Defendants by publication. request for “Because service by publication raises due process concerns and is a ‘notoriously unreliable means of actually informing interested parties about pending suits,’ it must be accomplished as provided statute and ‘substantial compliance’ is insufficient.” by the Vasile 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 then quoting Interiors, Hutcheson Inc., 730 v. S.E.2d Elizabeth 514, 517 Brennan (Ga. Ct. Antiques App. & 2012)). 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 . . . cannot, after conceals summons.” due himself diligence, or herself be to found avoid O.C.G.A. § 9-11-4(f)(1)(A).2 within the state, the service of or the “[T]he constitutional prerequisite for allowing such service . . . is a showing that reasonable diligence has been 2 exercised in attempting to 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. 4 ascertain S.E.2d their 909, publication 912 must whereabouts.” (Ga. Abba 1983). “exercise[] The due v. party Abba in Gana, 304 service seeking diligence available channel of information.” 170, 174 (Ga. Ct. App. 2001). Gana by pursuing every 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 personally serve Defendants. And all reasonable inferences indicate that Plaintiff would have been able to personally serve Defendants’ had he tried. show that he exercised Because the Plaintiff has failed to reasonable diligence in locating and personally serving the Defendants or their registered agents, his request for service by publication is denied. CONCLUSION Plaintiff’s motion (ECF No. 14) is denied in its entirety, and Defendants’ motion to dismiss (ECF No. 2) is granted. 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 5

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