Simms v. Deutsche Bank National Trust Company et al
Filing
21
OPINION AND ORDER that Defendants' Motion to Dismiss 15 is GRANTED IN PART. This action is DISMISSED WITHOUT PREJUDICE for failure to effectuate service of process on Defendants. IT IS FURTHER ORDERED that Plaintiffs Motion for Default Judgment 12 and Defendants' Motion to Stay 16 are DENIED AS MOOT. Signed by Judge William S. Duffey, Jr on 1/22/2014. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ROBIN SIMMS,
Plaintiff,
v.
1:12-cv-4493-WSD
DEUTSCHE BANK NATIONAL
TRUST COMPANY AS TRUSTEE
FOR CARRINGTON HOME
EQUITY LOAN TRUST, SERIES
2005-NC4 ASSET BACKED PASSTHROUGH CERTIFICATES, NEW
CENTURY HOME MORTGAGE
CORPORATION, MCCURDY
CANDLER, and GREG
SCHLEPPY, SENIOR VICE
PRESIDENT OF CARRINGTON
MORTGAGE SERVICES,
Defendants.
OPINION AND ORDER
This matter is before the Court on Defendants Deutsche Bank National Trust
Company as Trustee for Carrington Home Equity Loan Trust Series 2005-NC4
Asset Backed Pass Through Certificates (“Deutsche Bank”), McCurdy and Candler
(“McCurdy”), and Greg Schleppy’s (“Schleppy”) (collectively, “Defendants”)1
1
On February 19, 2013, New Century Home Mortgage Corporation (“New
Century”) filed a Suggestion of Bankruptcy [2] which asserts that Plaintiff is
precluded from obtaining monetary relief against New Century pursuant to the
Response [9] to the Court’s May 2, 2013, Show Cause Order [8]. Also before the
Court are Plaintiff Robin Simms’s (“Plaintiff” or “Simms”) Objection to
Defendants’ Response [11]2 and “Reversal of Wrongful Foreclosure and Motion
for Default Judgment (“Motion for Default Judgment”) [12], and Defendants’
Motion to Dismiss [15] and Motion to Stay [16].
I.
BACKGROUND
On April 4, 2005, Plaintiff obtained a loan from New Century Mortgage
Corporation (“New Century”), secured by a deed (“Security Deed”) to real
property located at 780 Yorkshire Place SW, Lilburn, Georgia (the “Property”).
(Compl. ¶ 8). Plaintiff executed the Security Deed in favor of New Century. (Id.).
On November 23, 2010, New Century assigned its rights under the Security
Deed (the “Assignment”) to Deutsche Bank. (Compl. ¶ 8 & Ex. A [1.1]).
On December 3, 2012, McCurdy, on behalf of Deutsche Bank, notified
Plaintiff that the balance of her loan had been accelerated and that a foreclosure
sale of the Property was scheduled for January 2, 2013. (Compl. ¶¶ 9, 48).
bankruptcy court’s order confirming New Century’s bankruptcy plan. Plaintiff
does not object, and to the extent New Century requests to be dismissed from this
action, New Century’s request is granted.
2
Plaintiff’s Objection to Defendants’ Response also appears to be her
response to the Court’s May 10, 2013, Order [10] directing Plaintiff to show cause
why this action should not be dismissed for failure to effectuate service of process.
2
On December 31, 2012, Plaintiff, initially proceeding pro se, filed her
Complaint [1] “seeking damages and penalties for the past and future claims that
violate the False Claims Act, 31 U.S.C. § 3729, and the common law,” and to
enjoin Defendants from foreclosing on the Property. (Id. ¶¶ 1, 45-57). Plaintiff
asserts that Deutsche Bank lacks standing to foreclose on the Property, that the
Assignment is not valid, that Defendants failed to modify Plaintiff’s loan, and that
Defendants failed to respond to Plaintiff’s Qualified Written Requests (“QWRs”).
On March 4, 2013, Plaintiff filed returns of service for McCurdy, Deutsche
Bank and Schleppy, indicating that they were served with process, respectively, on
March 4, January 28, and January 29, 2013. The returns of service show that
Plaintiff attempted service by delivering copies of the Complaint and Summons to
Defendants via certified mail.
On March 15, 2013, John Andrle, an attorney with McCurdy, filed a Notice
of Appearance on behalf of Deutsche Bank and McCurdy [7].
On May 2, 2013, the Court entered an order [8] directing Defendants to
show cause why default should not be entered against them for failure to respond
to Plaintiff’s Complaint.
On May 8, 2013, Defendants responded to the Court’s May 2nd Order,
asserting that Plaintiff failed to serve process on Defendants and that this action is
3
subject to dismissal because the time period for service has expired. Defendants
contend that Plaintiff’s attempt at service of process—mailing copies of the
Complaint and Summons addressed to Defendants generally—is insufficient under
Georgia law or Rule 4 of the Federal Rules of Civil Procedure.
On May 10, 2013, the Court entered an order [10] directing Plaintiff to show
cause why this action should not be dismissed for failure to effectuate service of
process.
On May 15, 2013, Plaintiff filed her Objection to Defendants’ Response.
Plaintiff asserts that service was proper, including because Rule 4 permits service
by certified mail. Plaintiff also appears to argue that Defendants are precluded
from claiming that service was ineffective because Andrle “entered his appearance
in spite of his allegation of ineffective service and never addressed his concern
until the show cause order response,” and because New Century and Schleppy
have not objected that service was ineffective. (Pl’s Obj. ¶¶ 5-8).
On June 4, 2013, the Property was sold at foreclosure. (Defs’ Resp. to Mot.
for Default J. [13] at 2-3).
On June 5, 2013, Plaintiff filed her “Reversal of Wrongful Foreclosure
Action and Motion for a Default Judgment,” in which Plaintiff asserts that the
“required Foreclosure notice did not appear for 4 consecutive weeks in publication
4
according to O.C.G.A. Section 44-14-162.2(a)” and that “[i]n spite of pending
Litigation the Defendants have proceeded with an Illegal as well as Wrongful
Foreclosure.” (Mot. for Default J. ¶¶ 2-3).3
On July 3, 2013, Defendants moved to dismiss Plaintiff’s Complaint for
insufficient service of process and failure to state a claim.
II.
DISCUSSION
A.
Service of Process
Rule 4(m) of the Federal Rules of Civil Procedure states:
If 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. But if the plaintiff
shows good cause for the failure, the court must extend the time for
service for an appropriate period.
Fed. R. Civ. P. 4(m). Rule 4(e) provides that an individual may be served by:
(1) following state law for serving a summons in an action brought in
courts of general jurisdiction in the state where the district court is
located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to
the individual personally;
(B) leaving a copy of each at the individual’s dwelling or usual
place of abode with someone of suitable age and discretion
3
In their Response to Plaintiff’s Motion for Default Judgment, Defendants
assert that the June 4, 2013, foreclosure sale was advertised in the Gwinnett Daily
Post on May 9, 16, 23, and 30, 2013, and that the advertisement included the name
of the foreclosing entity and a full and complete description of the Property.
(Defs’ Resp. to Mot. for Default J. at 3 & Ex. 1).
5
who resides there; or
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
Fed. R. Civ. P. 4(e). Similarly, Georgia law requires service to be made upon the
defendant personally, or at his residence, or upon his agent.
O.C.G.A. § 9-11-4(e)(2), (7).
Rule 4(h) provides that service of process may be made on a corporation, or
other unincorporated association subject to suit,
(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 . . . .
Fed. R. Civ. P. 4(h)(1). Rule 4(e)(1) states that service can be effected “by
following state law for serving a summons in an action brought in courts of general
jurisdiction in the state where the district court is located or where service is
made.” Fed. R. Civ. P. 4(e)(1).
Under Georgia law, a plaintiff serves process on a corporation or limited
liability company by delivering a copy of the summons and complaint “to the
president or other officer of the corporation, secretary, cashier, managing agent, or
other agent thereof.” O.C.G.A. § 9-11-4(e)(1); see also Anthony Hill Grading, Inc.
v. SBS Inves., LLC, 678 S.E.2d 174, 177 (Ga. Ct. App. 2009) (applying O.C.G.A.
6
§ 9-11-4(e)(1) to limited liability companies). If service cannot be made in that
manner, Georgia law provides for substitute service upon the Secretary of State,
along with a certification that the plaintiff has attempted service, that service could
not be effected, and that plaintiff forwarded by registered mail the summons and
complaint to the last known address of the corporation’s office or agent. O.C.G.A.
§ 9-11-4(e)(1). If it appears that there is a last known address of a corporate office
outside Georgia, plaintiff must, “in addition to and after such service upon the
Secretary of State, mail . . . to the known officer at the address by registered or
certified mail or statutory overnight delivery a copy of the summons and a copy of
the complaint.” Id.
Ultimately, a plaintiff is responsible for timely serving process on the
defendant. Anderson v. Osh Kosh B’Gosh, 255 F. App’x 345, 347 (11th Cir.
2006) (“A plaintiff is responsible for serving the defendant with both a summons
and the complaint within the time permitted under Rule 4(m).”). The Eleventh
Circuit has held that “service of process that is not in ‘substantial compliance’ with
the requirements of the Federal Rules is ineffective to confer personal jurisdiction
over the defendant, even when a defendant has actual notice of the filing of the
suit.” Abele v. City of Brooksville, Fla., 273 F. App’x 809, 811 (11th Cir. 2008)
(citing Prewitt Enters., Inc. v. Org. of Petroleum Exp. Countries, 353 F.3d 916, 925
7
(11th Cir. 2003)). When a defendant challenges service of process, “the serving
party bears the burden of proving its validity or good cause for failure to effect
timely service.” Sys. Signs Supplies v. U.S. Dep’t of Justice, 903 F.2d 1011, 1013
(5th Cir. 1990).
While courts “are to give liberal construction to the pleadings of pro se
litigants,” such generosity does not excuse pro se litigants from failing “to conform
to procedural rules.” Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007)
(quotes and cite omitted); see also Nelson v. Barden, 145 F. App’x 303, 311 n.10
(11th Cir. 2005) (quoting Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998)) (dismissing pro se litigant’s case for failure to effect timely service of
process because “a [party’s] pro se status in civil litigation generally will not
excuse mistakes he makes regarding procedural rules”). Plaintiff is required to
comply with the procedural rule here, and any “[f]ailure to understand Rule 4(m)
does not excuse [her] failure to provide timely service.” Cain v. Abraxas,
209 F. App’x 94, 96 (3rd Cir. 2006).
2.
Analysis
The Returns of Service indicate that Plaintiff attempted to serve Defendants
by sending them copies of the Summons and Complaint by certified mail. In their
Response to the Court’s May 2nd Order, Defendants asserted that Plaintiff failed to
8
serve process on any of the Defendants, including because service could not be
perfected by mailing Defendants copies of the Summons and Complaint. The
Court’s May 10th Order further put Plaintiff on notice that service was defective.
In her Objections to Defendants’ Response, Plaintiff merely asserts that
“[a]ll Defendants were served via Certified Mail on or after January 26, 2013,” and
that “[a]ccording to the instructions for filing a civil complaint service of a
complaint may be perfected by certified mail (Rule 4).” (Pl’s Resp. ¶ 2). Plaintiff
does not allege that Defendants waived personal service of process, and she also
does not allege that she sent Defendants a request for waiver of service as
described in Federal Rule of Civil Procedure 4(d) or O.C.G.A. § 9-11-4(d).
Plaintiff’s attempt to serve Defendants by mail is simply insufficient to perfect
service of process on any of the Defendants in this case. See Syer v. Wal-Mart
Stores, Inc., 318 F. App’x 843, 844 (11th Cir. 2009) (service by mail is insufficient
to deliver a copy of the summons and complaint to an authorized agent under
Federal Rule of Civil Procedure 4(h)(1)(B)); Ritts v. Dealers Alliance Credit Corp.,
989 F.Supp. 1475, 1478 (N.D. Ga. 1997) (“[T]he mailing of a copy of the
summons and complaint along with a request for acknowledgment of service to
Defendant's registered agent is not sufficient under Georgia law to perfect
service.”); Madden v. Cleland, 105 F.R.D. 520, 523 (N.D. Ga. 1985) (“Georgia
9
law has no provision for service by mail.”); KMM Indus., Inc. v. Prof’l Ass’n, Inc.,
297 S.E.2d 512, 513 (Ga. Ct. App. 1982) (“There is no provision in Georgia law
which authorizes a party to serve a defendant corporation directly by certified or
registered mail. . . .”). More than 120 days have passed since Plaintiff filed her
Complaint. Plaintiff has failed to perfect service on any of the Defendants, and she
has not shown cause or attempted to show cause for this failure.4 This action is
required to be dismissed.5
4
To the extent Plaintiff, and later her counsel, argue that Defendants waived
service because Andrle filed a “general entry of appearance” on March 15, 2013,
“[t]he Federal Rules of Civil Procedure abolished the technical distinction between
general and special appearances.” See Product Promotions, Inc. v. Cousteau,
495 F.2d 483, 490 (5th Cir. 1974) abrogated on other grounds as recognized in
Ramos-Barrientos v. Bland, 661 F.3d 587 (11th Cir. 2011); 5B Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 1344 (3d ed.) (“It is
no longer necessary to appear specially or employ any particular set of words to
challenge a federal court’s personal jurisdiction, venue, or service of process.”).
Rule 12 of the Federal Rules of Civil procedure simply require that a challenge to
the Court’s exercise of personal jurisdiction must be raised no later than the raising
of other defenses under Rule 12. See, e.g., Product Promotions, 495 F.2d at 490;
Wright v. Yackley, 459 F.2d 287, 291 (9th Cir. 1972). To the extent Plaintiff relies
on Keith v. Alexander Underwriters Gen. Agency, Inc., 463 S.E.2d 732 (Ga. Ct.
App. 1995), to support that Defendants’ appearance constitutes a waiver of service,
Keith applies Georgia law and it is “well-established that the sufficiency of an
appearance or notice of appearance is tested by federal principles and not by state
practice.” See Wright & Miller § 1344. It is troubling that Plaintiff’s counsel
asserts an argument that does not have a sound legal basis.
5
Because this action is required to be dismissed for failure to effectuate
service of process, the Court does not reach the merits of Defendants’ additional
arguments for dismissal, including failure to state a claim.
10
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss [15] is
GRANTED IN PART. This action is DISMISSED WITHOUT PREJUDICE
for failure to effectuate service of process on Defendants.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Default Judgment
[12] and Defendants’ Motion to Stay [16] are DENIED AS MOOT.
SO ORDERED this 22nd day of January, 2014.
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