Ballew et al v. Roundpoint Mortgage Servicing Corporation et al
ORDER finding as moot 4 Motion for Attorney Fees; granting 5 Motion to Dismiss; finding as moot 8 Motion to Remand. Ordered by Judge Hugh Lawson on 2/13/2012. (nbp)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MARCUS S. BALLEW and
PAMELA E. BALLEW,
Civil Action No. 7:11-cv-138 (HL)
ROUNDPOINT MORTGAGE SERVICING
RANDOM PROPERTIES ACQUISITION
This case is before the Court on Defendants’ Motion for Attorney Fees
(Doc. 4), Defendants’ Motion to Dissolve Injunction and to Dismiss (Doc. 5), and
Plaintiffs’ Motion to Remand (Doc. 8). For the reasons discussed herein, the
Motion to Dismiss is granted, the Motion for Attorney Fees is denied as moot,
and the Motion to Remand is denied as moot.
On July 8, 2011, Plaintiffs filed a complaint in the Superior Court of Tift
County alleging that Defendants were attempting to illegally foreclose on their
residence located at 20 Eagle Drive, Tifton, Georgia. The Superior Court entered
a temporary injunction enjoining the advertising of the property in any
newspaper, which effectively served to stop the foreclosure proceedings.
Defendants removed the case to this Court on October 10, 2011, alleging
Defendants subsequently filed the pending Motion to Dissolve Injunction
and Motion to Dismiss, claiming, among other things, that Plaintiffs failed to effect
service of process on them.
Plaintiffs do not dispute that Defendants were never served before the
case was removed. In fact, Plaintiffs state in their Motion to Remand that “the
Defendants were never properly served in the Superior Court below. . . .” (Doc. 8,
pp. 1-2). There is nothing in the record showing that Plaintiffs attempted service
on the Defendants after the action was removed. The filing of the Motion to
Dismiss put Plaintiffs on notice of the alleged defective service.
Under federal law, “[i]f a defendant is not served within 120 days after the
complaint is filed, the court - on motion or on its own after notice to the plaintiff must dismiss the action without prejudice against that defendant or order that
service be made within a specified time.” Fed.R.Civ.P. 4(m). “[I]f the plaintiff
shows good cause for the failure, the court must extend the time for service for
an appropriate period.” Id. The 120-day time limit for service in a case that is
removed to federal court begins to run when the case is removed from state
court. See Patterson v. Mighty Muffler Shop, Inc., No. 1:10-CV-2176-RWS, 2011
WL 4479218, at *1 (N.D. Ga. Sept. 26, 2011); Dees v. Wash. Mut. Bank, No.
3:10-CV-0045 (CAR), 2010 WL 5349865, at *5 (M.D. Ga. Dec. 21, 2010).
The 120-day time period expired in this case on February 7, 2012, and as
stated above, there is nothing in the record showing that Plaintiffs perfected
service under Rule 4 by that date. Further, Plaintiffs have not demonstrated good
cause for their failure to serve Defendants. Accordingly, the Court grants
Defendants’ Motion to Dismiss (Doc. 5) for failure to perfect service of process.
The complaint is dismissed without prejudice. In light of the dismissal, the Motion
for Attorney Fees (Doc. 4) and Motion to Remand (Doc. 8) are both denied as
SO ORDERED, this the 13th day of February, 2012.
s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE
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