Kennebrew v. Green Tree Services LLC et al

Filing 9

ORDER: Defendants' 7 Motion to Dismiss is GRANTED and the complaint is dismissed without prejudice. Plaintiff's 4 Motion for Relief, Stay and Injunction is thus DENIED as moot. Signed by Judge Richard W. Story on 10/2/2014. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
KATIE C. KENNEBREW,
Plaintiff,
v.
GREEN TREE SERVICES LLC,
LENDMARK FINANCIAL
SERVICES, INC., and ELLIS,
PAINTER, RATTERREE &
ADAMS LLC,
Defendants.

:
:
:
:
:
:
:
:
:
:
:
:
:

CIVIL ACTION NO.
1:14-CV-1346-RWS

ORDER
This case comes before the Court on Plaintiff’s Motion for Relief [4] and
Defendants Green Tree Servicing LLC (“Green Tree”) and Lendmark Financial
Services, Inc.’s (“Lendmark”) Motion to Dismiss [7]. After reviewing the
record, the Court enters the following Order.
Background
Plaintiff Katie C. Kennebrew initiated this action on May 5, 2014,
requesting the Court to set aside a foreclosure sale on the grounds of wrongful
foreclosure, fraud, and misrepresentation. (Compl., Dkt. [1]) Plaintiff purchased
real property located at 4868 Zinzendorf Drive, Lithonia, Georgia 30038 (the

AO 72A
(Rev.8/82)

“Property”) on June 29, 2001. (Pl.’s Mot. for Relief, Dkt. [4] at 3; Security
Deed, Dkt. [7-2] at 1.) That same day, Plaintiffs executed a promissory note to
obtain a loan from Lendmark in the principal amount of $107,115.00. (Security
Deed, Dkt. [7-2] at 1.)1 Plaintiff contemporaneously executed a security deed in
favor of Lendmark as grantee. (Id.) The security deed was then recorded in the
DeKalb County real property records. (Id.) According to Defendants, Green
Tree now services Plaintiff’s loan. (Mot. to Dismiss, Dkt. [7-1] at 2.)
After filing her complaint with the Court, Plaintiff filed a U.S. Postal
Service return receipt card showing she served by certified mail a copy of the
summons to Defendant Green Tree at two corporate office addresses: one in
Tempe, Arizona and another in St. Paul, Minnesota. The mailed summonses
were not addressed to the president, any officer, or managing agent of
Defendant Green Tree. The receipt cards Plaintiff filed were signed at the time
and place of delivery, but the individuals who signed for the deliveries did not
identify themselves as agents of Green Tree even though the receipt had a place

1

The Court may take judicial notice of public records without converting the
instant motion into a motion for summary judgment. Universal Express, Inc. V. SEC,
177 F. App’x 52, 53 (11th Cir. 2006) (stating that “[p]ublic records are among the
permissible facts” of which a court may take judicial notice).
2

AO 72A
(Rev.8/82)

to acknowledge the signee was in fact an agent of the addressee. Further, it does
not appear a copy of the complaint was attached to either summons. Defendants
Green Tree and Lendmark argue that Plaintiff has failed to properly serve
Defendants with notice, and so Plaintiff’s complaint should be dismissed.
Plaintiff has not responded to Defendants’ motion, and thus Defendants’
arguments are deemed unopposed. See L.R. 7.1(B), N.D. Ga.
Discussion
While Defendants argue that Plaintiff has failed to state a claim upon
which relief may be granted, they first argue they have not been properly served
and thus the Court lacks jurisdiction over them. The issue of service must be
addressed first. “Service of process is a jurisdictional requirement: a court lacks
jurisdiction over the person of a defendant when that defendant has not been
served.” Pardazi v. Cullman Medical Center 896 F.3d 1313, 1317 (11th Cir.
1990); see also Jackson v. FCC, Warden-USP, 259 F. App’x 181, 183 (11th
Cir.2007) (vacating and remanding decision on the merits because defendants
were not properly served and court did not have jurisdiction). Therefore, if
Defendants have not been properly served, this Court has no jurisdiction to
render a decision on the merits, and the case must be dismissed.
3

AO 72A
(Rev.8/82)

I.

Legal Standard
A.

Proper Service of a Corporation

Federal Rule of Civil Procedure 4(h)(1) requires that a corporation be
served with process either “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.” Under Rule
4(h), service of process on a corporation may be effected by delivering a copy
of the summons and the complaint to an officer of the corporation. The
Eleventh Circuit has held that Rule 4(h) requires personal service on an agent of
a corporation to properly perfect service. Dyer v. Wal-Mart Stores, Inc., 318 F.
App’x 843, 844 (11th Cir. 2009) (“[t]he term “delivering” appears to refer to
personal service). In Dyer the Court upheld dismissal of a pro se action on
grounds of imperfect service where the complainant’s only attempt at service
was sending by certified mail a copy of the summons and complaint to the
defendant corporation’s registered agent.
Rule 4(h) also allows for service of a corporation in the manner
prescribed by Rule 4(e)(1). Rule 4(e)(1) permits a claimant to perfect service
by “following state law for serving a summons in an action brought in courts of
4

AO 72A
(Rev.8/82)

general jurisdiction in the state where the district court is located.” In Georgia, a
corporation is properly served by delivering a copy of both the summons and
complaint to the president or other officer of such corporation, a managing
agent thereof, or a registered agent thereof. O.C.G.A. § 9-11-4(e)(1)(A). “The
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. The service upon a registered agent has to
be personal.” Ritts v. Dealers Alliance Credit Corp., 989 F. Supp. 1475, 1478
(N.D. Ga. 1997) (citing Todd v. Harnischfeger Corp., 340 S.E.2d 22, 23 (Ga.
Ct. App. 1985)).
B.

Time to Perfect Service

The Federal Rules give complainants 120 days from the date of filing to
perfect service or face dismissal. FED. R. CIV. P. 4(m) (“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”). Because Defendants have moved for dismissal on the
basis of improper service of process, this Court must dismiss the complaint if
service of process was inadequate and 120 days have elapsed since the date
5

AO 72A
(Rev.8/82)

Plaintiff filed her complaint.
II.

Analysis - Defendants’ Motion to Dismiss
While the Court will “liberally construe a pro se litigants’ pleadings, pro

se litigants are still required to conform to the procedural rules.” Brandon v.
Lockheed Martin Aeronautical Sys, 393 F. Supp. 2d 1341, 1348 (N.D. Ga.
2005). Defendants contend Plaintiff failed to serve a registered agent of the
corporation with a copy of the summons and complaint as required by the
Federal Rules of Civil Procedure and O.C.G.A. § 9-11-4(e). The Court agrees.
First, Plaintiff did not personally serve the president or any agent of Defendant
Green Tree or Defendant Lendmark. Plaintiff has filed only a U.S. Post Office
return receipt showing delivery of a copy of the summons to Green Tree’s
corporate offices. Unlike the summons in Dyer, which was addressed to a
registered agent but was still improper because it was not personally served, the
summons here was neither personally served nor addressed to a registered agent
or officer. Therefore, the Court finds Plaintiff did not properly serve Defendants
as required by Rule 4 and O.C.G.A. § 9-11-4(e).
Second, both Rule 4 and the Georgia service statute require the complaint
be served along with the summons. Plaintiff failed to attach the complaint to her
6

AO 72A
(Rev.8/82)

attempted service mailing. Thus, even if Plaintiff had personally served an
agent of Green Tree or Lendmark, service was still inadequate because the
complaint was not attached to the summons.
Finally, pursuant to Rule 4(m), the court must dismiss an action without
prejudice if the plaintiff fails to perfect service of process within 120 days of
filing the complaint. Plaintiff filed her complaint on May 5, 2014, and more
than 120 days have passed. Thus, Plaintiff’s complaint is due to be dismissed
for inadequate service of process.
Conclusion
Based on the foregoing, Defendants’ Motion To Dismiss [7] is
GRANTED and the complaint is dismissed without prejudice. Plaintiff’s
Motion for Relief, Stay and Injunction [4] is thus DENIED as moot.
SO ORDERED, this 2nd day of October, 2014.

________________________________
RICHARD W. STORY
United States District Judge

7

AO 72A
(Rev.8/82)