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)

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

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