LEE v. BANK OF AMERICA NA

Filing 15

ORDER denying 8 Motion to Dismiss Complaint. Plaintiff must file amended complaint not later than 6/3/2013; failure will result in dismissal of case without further order of this Court. Ordered by Judge Hugh Lawson on 5/15/2013. (nbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION

PATRICIA BENTON LEE,
Plaintiff,
v.

Civil Action No. 7:13-CV-8 (HL)

BANK OF AMERICA, N.A. a/k/a BAC
HOME LOANS SERVICING, LP, f/k/a
COUNTRYWIDE
HOME
LOANS
SERVICING, L.P.,
Defendants.

ORDER
This case is before the Court on Defendant’s Motion to Dismiss Plaintiff’s
Complaint (Doc. 8).
While proceeding pro se, Plaintiff filed a complaint in the Superior Court of
Thomas County that is 64 pages long, consisting of 179 paragraphs. Also
attached are 265 pages of exhibits. Defendant Bank of America removed the
case to this Court on January 18, 2013, and has moved to dismiss the complaint
for insufficient service of process and failure to state a claim.
The Court must first address Defendant’s Rule 12(b)(5) motion to dismiss
for insufficient service of process, as without service, the Court lacks jurisdiction
over the defendant. A summons and the complaint were served by a Thomas
County Deputy on December 19, 2012 on Elizabeth Riddle, a vice president at a

Bank of America branch office in Thomasville. Defendant contends that this
service does not comport with the requirements of Rule 4.
“In actions removed from state court, the sufficiency of service of process
prior to removal is determined by the law of the state from which the action was
removed.” Rentz v. Swift Transp. Co., Inc., 185 F.R.D. 693, 696 (M.D. Ga. 1998).
“After removal the sufficiency of service of process is determined according to
federal law.” Id. at 696 (citing 28 U.S.C. § 1448). Rule 4(h)(1), which governs
service on a corporation provides:
Unless federal law provides otherwise or the
defendant’s waiver has been filed, a domestic or foreign
corporation, or a partnership or other unincorporated
association that is subject to suit under a common
name, must be served: (1) in a judicial district of the
United States: (A) in the manner prescribed by Rule
4(e)(1) for serving an individual; or (B) 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.
Fed.R.Civ.P. 4(h)(1).
Under Rule 4(h), service upon a corporation may be effected in
accordance with state law. See Fed.R.Civ.P. 4(e)(1). In Georgia, service upon
corporations is governed by O.C.G.A. § 9-11-4(e)(1), which requires personal
service on “the president or other officer of the corporation, secretary, cashier,

2

managing agent, or other agent thereof. . . .” O.C.G.A. § 9-11-4(e)(1). The
standard for who qualifies as an “agent” under the statute is not high. Henderson
v. Cherry, Bekaert & Holland, 932 F.2d 1410, 1412 (11th Cir. 1991). As the
Supreme Court of Georgia has recognized, “the object of service of process is to
transmit notice of suit to the corporation.” Scott v. Atlanta Dairies Coop., 239 Ga.
721, 724, 238 S.E.2d 340, 343 (1977). Therefore, service “must be made on an
agent whose position is such as to afford reasonable assurance that he will
inform his corporate principal that such process has been served upon him.” Id.
The agent does not need to have a high degree of authority, be able to sign
contracts on behalf of the corporation, or be authorized by the corporation to
accept service. Henderson, 932 F.2d at 1412. Georgia courts have found service
was proper when made on a manager of a branch store. Ogles v. Globe Oil Co.
U.S.A., 171 Ga. App. 785, 320 S.E.2d 848 (1984). Interpreting Georgia law, the
Eleventh Circuit has also found that service on a firm's manager is proper even
when the defendant provided no information regarding the manager's authority
and responsibility within the firm. Henderson, 932 F.2d at 1412. In addition,
“Georgia courts also consider the fact of actual notice in answering the question
whether an employee is a valid agent for receipt of service.” Id.

3

As noted above, a summons and the complaint were served on Elizabeth
Riddle, a vice president at a branch office of the bank in Thomasville. As a vice
president, Riddle can reasonably be expected to provide notice to the corporation
of the process that was served upon her. In addition, it is undisputed that
Defendant learned of the lawsuit and was able to respond in a timely manner.
The Court therefore finds that the process and service of process was proper in
this case.
While Defendant has been properly served, that does not end the inquiry.
The Court agrees with Defendant that the complaint as it stands now is an
impermissible shotgun pleading. The gravamen of Plaintiff’s claims cannot be
discerned from the complaint which she obviously did not write. From its face, the
complaint appears to have been acquired through a commercial transaction, and
it is filled with irrelevancies, redundancies, and so forth. The Court acknowledges
that Plaintiff may have a viable claim, but the Court cannot tell what her claim is
based on what has been filed. Plaintiff is ordered to file an amended complaint
that complies with Rule 8 no later than June 3, 2013. This means Plaintiff must
file a complaint that contains “a short and plain statement of the claim showing
that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), and must plead factual
content that allows the Court to draw the reasonable inference that Defendant is
liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.

4

1937 (2009) (citation omitted). Plaintiff is directed to serve the amended
complaint on Defendant as provided by the Federal Rules of Civil Procedure.
Defendant’s Motion to Dismiss Plaintiff’s Complaint (Doc. 8) is denied, but
Defendant will have the right to re-file a motion to dismiss if appropriate once it is
served with the amended complaint.
Failure to timely file the amended complaint will result in this case being
dismissed without further order of the Court.
SO ORDERED, this the 15th day of May, 2013.
s/ Hugh Lawson_______________
HUGH LAWSON, SENIOR JUDGE

mbh

5