BRYANT v. BANK OF AMERICA
ORDER GRANTING 5 Motion to Dismiss; DENYING as moot 3 Motion to mandate an affidavit; DENYING as moot 4 Motion to direct transfer assets. Plaintiff's Complaint is DISMISSED without prejudice. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 6/24/2014. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
EARL A. BRYANT,
BANK OF AMERICA, et al.,
CIVIL ACTION NO. 5:14-CV-42 (MTT)
This matter is before the Court on the Defendants’ motion to dismiss (Doc. 5) and
the Plaintiff’s motion to mandate an affidavit (Doc. 3) and motion to direct the transfer of
assets (Doc. 4). For the following reasons, the Defendants’ motion is GRANTED, and
the Plaintiff’s motions are DENIED as moot.
In his one paragraph complaint, which he titled “Affidavit for Damages,” Plaintiff
Earl Bryant requests “$350,000.00, plus damages against [Defendants Bank of America
and Bryan Moynihan] to recover financial assets and to stop further diminishment of
financial assets resulting from [the Defendants’] breach of fiduciary duty, moral hazard,
fraud, conspiracy and institutional theft of [Bryant’s] assets since 2003.” (Doc. 1).
Bryant also requests that the Court order Moynihan to direct Merrill Edge to transfer
some of Bryant’s assets into his Bank of America savings account and that the Court
mandate an affidavit response from Moynihan, although it is unclear what the requested
affidavit is concerning. (Docs. 3, 4).
The Defendants move to dismiss the complaint based on Bryant’s failure to state
a claim,1 lack of personal jurisdiction, insufficient process, and insufficient service of
Pursuant to Rule 4(m), the Court, after notice to the plaintiff, must dismiss the
action without prejudice if the defendant is not served within 120 days after the
complaint is filed, unless the plaintiff shows good cause for the failure or the Court, in its
discretion, extends the time for service without a showing of good cause. Fed. R. Civ.
P. 4(m). Thus, the Court has discretion to extend the time for service even if a plaintiff
has not shown good cause for failing to properly serve the defendant. Horenkamp v.
Van Winkle and Co., 402 F.3d 1129, 1132 (11th Cir. 2005). In exercising its discretion,
the Court must consider whether other circumstances warrant an extension of time
based on the facts of the case even if the plaintiff fails to show good cause. LeponeDempsey v. Carroll Cnty. Comm’rs, 476 F.3d 1277, 1282 (11th Cir. 2007). Advisory
Committee Notes to the federal rules provide some guidance as to what factors may be
considered, such as the running of the statute of limitations. Fed. R. Civ. P. 4(m)
advisory committee’s note.
Bryant filed his complaint in this Court on January 30, 2014. More than 120 days
have elapsed, but there is no indication that Bryant ever attempted to serve the
Defendants. Bryant was on notice of his failure to serve by virtue of the Defendants’
motion, but he never responded to the motion or otherwise offered an explanation of his
failure to properly serve the Defendants. Thus, Bryant has not shown good cause. The
It seems clear that the complaint fails to state a claim, but based on Bryant v. Citigroup, Inc., 512 F.
App’x 994 (11th Cir. 2013), the Court addresses only the issue of service.
Court further finds that no other circumstance warrants granting Bryant additional time
to serve the Defendants. Because the Court is dismissing the case for insufficient
service of process, the Court does not address the Defendants’ other grounds for
The Defendants’ motion to dismiss (Doc. 5) is GRANTED, the complaint is
DISMISSED without prejudice, and the Plaintiff’s motion to mandate an affidavit (Doc.
3) and motion to direct the transfer of assets (Doc. 4) are DENIED as moot.
SO ORDERED, this 24th day of June, 2014.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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