SAMPSON v. WELLS FARGO FINANCIAL GEORGIA INC et al

Filing 10

ORDER granting in part and denying in part 9 Motion to Dismiss Complaint. Wells Financial is Dismissed as a party. Plaintiff is ORDERED to amend his Complaint and itemize his damages to establish that he has met the amount in controversy requirement. The amended Complaint should be filed within 14 days of the entry of this Order. Ordered by Judge Marc Thomas Treadwell on 11/30/12 (lap)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ISAAC L. SAMPSON,
Plaintiff,
v.
WELLS FARGO FINANCIAL GEORGIA,
INC. and WELLS FARGO BANK, N.A.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 5:12-CV-121 (MTT)

ORDER
This matter is before the Court on the Defendants’ Motion to Dismiss (Doc. 9)
pursuant to Fed. R. Civ. P. 12(b)(5) and (b)(6) for insufficient service of process and
failure to state a claim.  The Plaintiff did not file a response. For the following reasons,
the Motion is GRANTED in part and DENIED in part.
The Defendants allege that the Plaintiff has not properly served either Wells
Fargo Financial Georgia, Inc. (“Wells Financial”) or Wells Fargo Bank, N.A. (“Wells
Fargo”). After being granted an extension of time to serve the Defendants (Doc. 5), the
Plaintiff has not filed proof that he attempted to serve Wells Financial. Accordingly, the
Motion is GRANTED as to Wells Financial, and Wells Financial is DISMISSED as a
party to this action.
The Plaintiff did, however, file an executed summons (Doc. 8) showing that Wells
Fargo’s registered agent in Iowa was personally served. Wells Fargo alleges that
service on Wells Fargo was insufficient because, under Georgia law, a foreign
corporation that is registered to do business in Georgia and maintains a registered

agent in Georgia for service of process must be served through the Georgia registered
agent rather than extraterritorially. See Cherokee W. Warehouses, Inc. v. Babb Lumber
Co., Inc., 244 Ga. App. 197, 198, 535 S.E.2d 254, 255 (2001).
The Plaintiff served Wells Fargo pursuant to Fed. R. Civ. P. 4(h)(1)(B) rather than
4(h)(1)(A). Rule 4(h)(1)(B) provides that a corporation may be served:
in a judicial district of the United States: … by delivering a copy of the
summons and of the complaint to an officer, a managing or general agent,
or any other agent authorized by appointment or by law 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.
Rule 4(h)(1)(A) provides that a corporation may be served “in the manner prescribed by
Rule 4(e)(1) for serving an individual,” which includes any manner that is appropriate
under state law where the district court is located. Because the Plaintiff has served
Wells Fargo pursuant to Rule 4(h)(1)(B) and not under state law, Georgia’s requirement
that the Georgia registered agent must be served for a foreign corporation registered to
do business in Georgia is inapplicable. Accordingly, the Plaintiff has properly served
Wells Fargo.
The Plaintiff claims that Wells Fargo has encroached on his property and
requests various forms of relief including rental payments, damages for the loss of use
of his property, and ejectment of Wells Fargo from his property. Wells Fargo alleges
that the Plaintiff has failed to state a claim and asserts the defense of clean hands
because Wells Fargo claims that the Plaintiff “engineered” the encroachment and was
“the party in possession of the requisite knowledge to avoid the situation.” (Doc. 9-1 at
7). Wells Fargo also argues that the Plaintiff failed to allege Wells Fargo had
knowledge of the encroachment situation. The Complaint, however, does allege such

2

knowledge. (Doc. 1 at 2). Wells Fargo does not otherwise state why the Plaintiff has
failed to allege facts that would support a legally cognizable claim and, therefore, has
not satisfactorily shown why the Court should dismiss the Complaint. Accordingly, the
Motion is DENIED as to Wells Fargo.
Although Wells Fargo has not asserted that the Court lacks subject matter
jurisdiction over this case, the Court must inquire into subject matter jurisdiction sua
sponte. See, e.g., Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir.
1999) (“[I]t is well settled that a federal court is obligated to inquire into subject matter
jurisdiction sua sponte whenever it may be lacking.”). Because this case is based on
diversity jurisdiction, the amount in controversy must exceed $75,000, exclusive of
interests and costs. 28 U.S.C. § 1332. The Plaintiff has alleged damages in the
amount of $185,400 and requested an ejectment of Wells Fargo from his property but
has not shown a good faith basis for establishing the amount in controversy.
Accordingly, the Plaintiff is ORDERED to amend his Complaint and itemize his
damages to establish that he has met the amount in controversy requirement. The
amended Complaint should be filed within 14 days of the entry of this Order.
SO ORDERED, this 30th day of November, 2012.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT 

3