Brown et al v. SunTrust Mortgage, Inc.

Filing 44

ORDER granting 31 Motion to Dismiss; denying 38 Motion for Default Judgment against Ivey Shaw; denying 14 Motion for Miscellaneous Relief; granting 17 Motion to Dismiss; granting 18 Motion to Dismiss for Failure to State a Claim; terminating Defendants SunTrust Mortgage, Inc., Forsyth County Board of Commissioners and Forsyth County Environmental Health Department. Signed by Judge Richard W. Story on 12/18/12. (sk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
WILLIAM BOBBY BROWN,
RONALD MAYHEW, and
CONNIE MAYHEW,
Plaintiffs,
v.
SUNTRUST MORTGAGE, INC.;
IVEY SHAW, LLC; FORSYTH
COUNTY BOARD OF
COMMISSIONERS; and
FORSYTH COUNTY
ENVIRONMENTAL HEALTH
DEPARTMENT,
Defendants.

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CIVIL ACTION NO.
2:12-CV-00120-RWS

ORDER
This case comes before the Court on the following motions: (i) Plaintiffs’
Motion to Issue Subpoena [14], (ii) Defendant SunTrust Mortgage, Inc.’s
Motion to Dismiss [17], (iii) Defendant Forsyth County Board of
Commissioners’ Motion to Dismiss [18], (iv) Forsyth County Environmental
Health Department’s Motion to Dismiss [31], and (v) Plaintiff’s Motion for
Default Judgment against Defendant Ivey Shaw [38]. After reviewing the
record, the Court enters the following Order.

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Background
This case arises out of the purchase and foreclosure of Plaintiff William
Bobby Brown’s (“Brown”) property (“Property”), situated on Lot 12 of
Ivyshaw Landing Subdivision (“Subdivision”) and located at 9140 Ivyshaw
Landing, Gainesville, Georgia. Accepting the allegations in the Complaint and
the Amended Complaint (together the “Complaints”) as true, as the Court must
on a motion to dismiss,1 the facts are as follows.2
Plaintiff Brown acquired the Property from his daughter, Plaintiff Connie
Mayhew (“Mrs. Mayhew”), on or about December 23, 2003. (SunTrust
Mortgage, Inc.’s Memorandum of Law in Support of Its Motion to Dismiss
(“SunTrust Mortgage’s Mem.”), Dkt. [17-1] at 4.) Brown applied for a
residential mortgage loan on the Property (Compl., Dkt. [1] ¶ 9), and on June
27, 2006, Brown executed a promissory note (“Note”) in favor of SunTrust
Mortgage and a security deed (“Security Deed”) in favor of Mortgage

1

Cooper v. Pate, 378 U.S. 546, 546 (1964).

2

Where necessary for a more complete statement of the events giving rise to
Plaintiffs’ claims, the Court includes some facts from Defendants’ briefs that Plaintiffs
do not appear to dispute.
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Electronic Registration Systems, Inc. (“MERS”), as nominee for SunTrust
Mortgage and its successors and assigns. (SunTrust Mortgage’s Mem., Dkt.
[17-1] at 6 (citing Compl., Dkt. [1] ¶ 9).)
On November 3, 2011, MERS assigned “the Security Deed, and the
underlying indebtedness secured by the Note and the Security Deed” to
SunTrust Mortgage. (Id. at 8.) According to SunTrust Mortgage, “Brown
subsequently defaulted on the debt[,] . . . [and] SunTrust Mortgage accelerated
the debt and retained the law firm of Johnson & Freedman, LLC to institute
non-judicial foreclosure proceedings.” (Id.) The foreclosure sale was to occur
on July 2, 2012 (Compl., Dkt. [1] ¶ 10), but Defendant SunTrust Mortgage
states that, “as of [July 13, 2012], no foreclosure ha[d] occurred” (SunTrust
Mortgage’s Mem., Dkt. [17-1] at 9). It is unclear from the record whether the
foreclosure sale has taken place as of the date of this Order.
Plaintiffs claim that the development and sale of Lot 12 was shrouded in
fraud. Plaintiffs allege that the Subdivision was developed by Defendant Ivey
Shaw, LLC (“Ivey Shaw”) and approved by the County Commissioners on July
24, 2000. (Am. Compl., Dkt. [4] ¶¶ 19, 35.) Plaintiffs allege that Ivey Shaw
falsified the engineering plans for the Subdivision, including septic system and
3

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hydrology plans, and that the septic system was faulty. (Id. ¶ 19.) Plaintiffs
further state that Defendant Ivey Shaw induced them to purchase Lot 12
through false representations, including concealing a four-bedroom limitation
on the Property and representing that the Property would be connected to a
public sewer. (Id. ¶¶ 16-19.) Plaintiffs emphasize that, as a result of these
falsifications, the value of the Property is “far below” the value of the loan
currently on the Property (Compl., Dkt. [1] ¶ 33), and that the Property cannot
be marketed (id. ¶ 13).
Plaintiffs allege that Forsyth County3 facilitated the falsification of the
Subdivision and septic system designs and that the County “knew [Ivey
Shaw’s] promises to be false.” (Am. Compl., Dkt. [4] ¶¶ 16, 19, 37.) Further,
Plaintiffs state that Forsyth County and the Environmental Health Department
(“EHD”) profited from participation in the fraud through increased tax revenue
and permit fees. (Id. ¶ 40.)

3

While the Complaints make numerous allegations against Forsyth County or,
alternately, the County, the Court notes that Plaintiffs have not named Forsyth County
as a defendant. Nonetheless, the Court sets out the allegations as they appear in the
Complaints.
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Plaintiffs allege that SunTrust Mortgage “hired and dictated the closing
attorney” for the loan. (Compl., Dkt. [1] ¶ 13.) Plaintiffs further contend that
SunTrust was aware of this type of fraudulent activity in Georgia, but failed to
offer Plaintiffs insurance against this conduct. (Id.) Plaintiffs state that,
although they notified SunTrust of the falsifications, SunTrust wanted “to harm
Plaintiffs by foreclosure” (Am. Compl., Dkt. [4] ¶ 42) and “enjoy the profits of
selling the property to another unsuspecting member of the public” (Compl.,
Dkt. [1] ¶ 13).
Moreover, Plaintiffs allege that, by foreclosing, SunTrust Mortgage will
divest them of a “rightful equitable interest in the property.” (Id. ¶ 38.)
Further, Plaintiffs allege that SunTrust Mortgage “will make itself party to the
racketeering scheme of fraud for profit that is exposed [in the Complaints]” and
that “foreclosure is not in the best interest of Defendant SunTrust.” (Id. ¶ 13,
38.) Finally, Plaintiffs allege that SunTrust Mortgage profited from this
conduct by “making loans on properties that could never have been developed
if the law had been followed.” (Id. ¶ 38.)
On May 24, 2012, Plaintiffs filed this action in the Northern District of
Georgia, Gainesville Division. The Complaint names only SunTrust Mortgage
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as Defendant and seeks a declaratory judgment voiding the final plat for the
Subdivision (Count I), as well as an injunction against foreclosure (Count II).
(Id. ¶¶ 36, 39.) On June 22, 2012, Plaintiffs filed their Amended Complaint,
adding Ivey Shaw, the BOC, and the EHD as Defendants [4]. The Amended
Complaint incorporates by reference the allegations and claims raised in the
Complaint and also raises claims for civil RICO violations (Count III),
intentional infliction of emotional distress (Count IV), negligence (Count V),
and fraudulent inducement (Count VI).4 Plaintiffs seek actual, punitive, and
exemplary damages. (Am. Compl., Dkt. [4] ¶¶ 49, 53, 59, 64.)
On July 7, 2012, Plaintiffs filed an Emergency Motion for a Preliminary
Injunction [13], and on July 11, 2012, they filed a Motion to Issue Subpoena
[14]. The Court denied Plaintiffs’ Motion for a Preliminary Injunction on July
17, 2012. (Order, Dkt. [21] at 3.) Plaintiffs’ Motion to Issue Subpoena [14] is
still before the Court.

4

Defendants, in an abundance of caution, read the Complaints to allege
violations of the Clean Water Act, 33 U.S.C. § 1365, and the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692. However, Plaintiffs do not appear to raise these
claims as causes of action. Thus, the Court will consider only those claims set out in
the Complaints.
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On July 13, 2012, SunTrust Mortgage moved to dismiss the Complaints
under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) for failure to state a
claim against it [17]. On July 16, 2012, the BOC moved to dismiss the
Complaints under Rule 12(b)(6) and Rule 12(b)(5) for insufficient service of
process [18]. On September 5, 2012, the EHD likewise moved to dismiss the
Complaints under Rules 12(b)(5) and 12(b)(6) [31]. Plaintiffs have not
responded to Defendants’ respective motions. Therefore, the Court considers
them as unopposed. See LR 7.1(B).
Finally, on September 19, 2012, Plaintiffs filed a Motion for the Clerk to
enter Default as to Defendant Ivey Shaw. The Clerk entered Default on
October 4, 2012. On October 9, 2012, Plaintiffs filed a Motion for Default
Judgment against Ivey Shaw [38], which is now before the Court.
Discussion
I.

Legal Standard for a Motion to Dismiss
When considering a Rule 12(b)(6) motion to dismiss, a federal court is to

accept as true “all facts set forth in the plaintiff’s complaint.” Grossman v.
Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (citation omitted).
Further, the court must draw all reasonable inferences in the light most
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favorable to the plaintiff. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56
(2007) (internal citations omitted); Bryant v. Avado Brands, Inc., 187 F.3d
1271, 1273 n.1 (11th Cir. 1999). However, “[a] pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will
not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550
U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’
devoid of ‘further factual enhancement.’” Id.
The United States Supreme Court has dispensed with the rule that a
complaint may only be dismissed under Rule 12(b)(6) when “it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.’” Twombly, 550 U.S. at 561 (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)). The Supreme Court has replaced that rule
with the “plausibility standard,” which requires that factual allegations “raise
the right to relief above the speculative level.” Id. at 556. The plausibility
standard “does not[, however,] impose a probability requirement at the pleading
stage; it simply calls for enough facts to raise a reasonable expectation that
discovery will reveal evidence [supporting the claim].” Id.

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Additionally, because Plaintiff is acting pro se, his “pleadings are held to
a less stringent standard than pleadings drafted by attorneys and will, therefore,
be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998). “This leniency, however, does not require or allow courts to
rewrite an otherwise deficient pleading in order to sustain an action.” Thomas
v. Pentagon Fed. Credit Union, 393 F. App’x 635, 637 (11th Cir. 2010).
II.

Plaintiffs’ Motion to Issue Subpoena [14]
Plaintiffs move the Court to issue subpoenas for “certain witnesses to

appear and testify at a hearing for the Emergency Motion for Injunction, should
the court so set a hearing.” (Dkt. [14] ¶ 4.) However, as the Court denied
Plaintiffs’ Motion for a Preliminary Injunction (Order, Dkt. [21]), Plaintiffs’
Motion to Issue Subpoena is now moot. Accordingly, the Motion is DENIED.
III.

SunTrust Mortgage’s Motion to Dismiss [17]
In the Complaints, Plaintiffs raise claims against SunTrust Mortgage for

federal civil RICO (Count III), intentional infliction of emotional distress
(Count IV), negligence (Count V), and fraudulent inducement (Count VI).
Further, Plaintiffs seek a declaratory judgment (Count I) and injunctive relief
(Count II). SunTrust Mortgage moves to dismiss the Complaints in their
9

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entireties under Rule 12(b)(6), arguing that the Complaints are “devoid of
specific facts” and therefore fail to state a claim upon which relief can be
granted. (SunTrust Mortgage’s Mem., Dkt. [17-1] at 2.) The Court first
considers the substantive claims enumerated in Counts III-VI and then
addresses Plaintiffs’ requests for relief set out in Counts I and II.
A.

Civil RICO (Count III)

First, Plaintiffs claim that SunTrust Mortgage violated the Racketeer
Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968. Plaintiffs
allege that SunTrust “wants to foreclose and enjoy the profits of selling the
property to another unsuspecting member of the public,” that “foreclosure . . .
will make SunTrust party to the criminal racketeering activities” of other
Defendants, and that “SunTrust profited from this illegal activity . . . by making
loans on properties which would have never been developed if the law had been
followed.” (Compl., Dkt. [1] ¶ 13, 38.) Further, Plaintiffs allege that SunTrust
“wants to harm Plaintiffs by foreclosure.” (Am. Compl., Dkt. [4] ¶ 42.)
Defendant moves to dismiss the RICO Count on grounds that: (1) Plaintiffs fail
to state a claim under Federal Rule of Civil Procedure 8(a), and (2) Plaintiffs
fail to inform SunTrust Mortgage specifically of its alleged participation in the
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scheme, as required by Federal Rule of Civil Procedure 9(b). (SunTrust
Mortgage’s Mem., Dkt. [17-1] at 18, 20-22.)
“To prevail on a [federal] RICO claim, a plaintiff must prove three
essential elements: ‘(1) a violation of [18 U.S.C.] section 1962; (2) injury to
business or property; and (3) that the violation caused the injury.’” Fuller v.
Home Depot Servs., LLC, 512 F. Supp. 2d 1289, 1293 (N.D. Ga. 2007). Where
the RICO claim is premised on fraud, the Plaintiff must meet Rule 9(b)’s
heightened pleading standard. Ambrosia Coal & Const. Co. v. Pages Morales,
482 F.3d 1309 (11th Cir. 2007). Further, where a Plaintiff joins multiple
defendants, Rule 9(b) requires the Complaint to “inform each defendant of the
nature of his alleged participation in the fraud.” Ambrosia Coal & Const. Co.,
482 F.3d at 1317 (quoting Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116
F.3d 1364, 1380-81 (11th Cir. 1997)) (internal quotation marks omitted).
The Court agrees that Plaintiffs do not adequately state a federal civil
RICO claim against SunTrust Mortgage. Plaintiffs join multiple Defendants in
their RICO claim and allege fraud as the predicate offense. Therefore, Rule
9(b) requires Plaintiffs to allege how each Defendant participated in the alleged
fraud. Plaintiffs have not set forth sufficient allegations here. The Complaints
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do not allege how SunTrust participated in the racketeering scheme allegedly
conducted by other Defendants. Accordingly, SunTrust Mortgage’s Motion to
Dismiss Count III (federal Civil RICO) is GRANTED.
B.

Intentional Infliction of Emotional Distress (Count IV)

Second, Plaintiffs raise a claim against SunTrust Mortgage for intentional
infliction of emotional distress, alleging that SunTrust’s acts, as recited in the
Complaints, “constitute and [sic] outrage.” (Am. Compl., Dkt. [4] ¶ 51.)
SunTrust Mortgage moves to dismiss this claim on grounds that Plaintiffs fail to
state a claim upon which relief can be granted. (SunTrust Mortgage’s Mem.,
Dkt. [17-1] at 15.)
The Court agrees that Plaintiffs fail to state a claim for intentional
infliction of emotional distress. In Georgia, to establish a claim for intentional
infliction of emotional distress, a plaintiff must allege “(1) intentional or
reckless conduct, (2) that is extreme and outrageous and (3) causes emotional
distress (4) that is severe.” Collier v. Kroger Co., 683 S.E.2d 625, 626 (Ga. Ct.
App. 2009). The Complaints fail to allege any facts pertaining to SunTrust
Mortgage that would give rise to a claim for intentional infliction of emotional

12

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distress. Accordingly, SunTrust Mortgage’s Motion to Dismiss Count IV
(intentional infliction of emotional distress) is GRANTED.
C.

Negligence (Count V)

Third, Plaintiffs raise a claim against SunTrust Mortgage for negligence,
alleging that “defendants had a duty to act in a fair and reasonable manner when
dealing with Plaintiff with respect to all issues related to the subject property.”
(Am. Compl., Dkt. [4] ¶ 55.) SunTrust Mortgage moves to dismiss this claim
on grounds that: (1) Plaintiffs fail to state a claim upon which relief can be
granted and (2) SunTrust does not owe a duty of care to Plaintiffs, such that
Plaintiffs’ negligence claim fails as a matter of law. (SunTrust Mortgage’s
Mem., Dkt. [17-1] at 2, 20.)
In Georgia, to establish a claim for negligence, a plaintiff must show “(1)
a duty . . . recognized by law, requiring the actor to conform to a certain
standard of conduct, for the protection of others against unreasonable risks; (2)
a failure on [the defendant’s] part to conform to the standard required; (3) a . . .
causal connection between the conduct and the resulting injury; and (4) actual
loss or damage resulting to the interests of the other.” Marquis Towers, Inc. v.
Highland Grp., 593 S.E.2d 903, 906 (Ga. Ct. App. 2004).
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The Court agrees that Plaintiffs fail to state a claim against SunTrust
Mortgage for negligence. The Complaints allege no facts indicating that
SunTrust acted negligently toward Plaintiffs or that its conduct has caused
Plaintiffs harm. To the extent Plaintiffs attempt to allege that SunTrust owes
them a fiduciary duty, the law is settled in Georgia that “[c]reditors deal with
debtors at arm’s length, and do not stand in a fiduciary capacity in relationship
to the debtor.” May v. Citizen & S. Nat’l Bank, 413 S.E.2d 780, 782 (Ga. Ct.
App. 1991). Accordingly, SunTrust Mortgage’s Motion to Dismiss Count V
(negligence) is GRANTED.
D.

Fraudulent Inducement (Count VI)

Fourth, SunTrust moves to dismiss Plaintiffs’ claim for fraudulent
inducement on grounds: (1) that Plaintiffs fail to state a claim under Rule 8(a)
and (2) that Plaintiffs fail to plead fraud with particularity as required by Rule
9(b). Upon review of the Complaints, the Court notes that Plaintiffs do not
appear to be raising this claim against Defendant SunTrust Mortgage. Indeed,
the allegations contained in Count VI pertain only to other entities. (See Am.
Compl., Dkt. [4] ¶¶ 60-64.) However, to the extent Plaintiffs do attempt to raise
a claim against SunTrust Mortgage for fraudulent inducement, they have stated
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no facts to satisfy Rule 8(a) or Rule 9(b). Therefore, SunTrust Mortgage’s
Motion to Dismiss Count VI (fraudulent inducement) is GRANTED.
E.

Declaratory Judgment (Count I) and Injunctive Relief (Count II)

Finally, Plaintiffs seek a declaratory judgment that “the final plat for
Ivyshaw Landing Subdivision is void” (Compl., Dkt. [1] ¶ 36) and an injunction
barring SunTrust Mortgage from foreclosing on the subject property (id. ¶¶ 4041). SunTrust Mortgage moves to dismiss these counts on grounds that
Plaintiffs fail to state a claim against it and, alternately, that it has the authority
to foreclose.5 (SunTrust Mortgage’s Mem., Dkt. [17-1] at 4, 17.)
The Court first notes that these are requests for relief, and not affirmative
causes of action, as Plaintiffs label them. The Court found in Parts III(A)-(D),
supra, that Plaintiffs fail to state a substantive claim against SunTrust Mortgage
upon which relief may be granted. Further, as the Court found in its earlier
Order, “Plaintiffs do not allege that they are current on their loan payments, nor
do they allege that SunTrust does not have the authority to foreclose.” (Order,
Dkt. [21] at 3.) Thus, because Plaintiffs fail to state a claim against SunTrust
5

SunTrust notes that the Note and the Security Deed give it the authority to
foreclose (id. at 10), and Plaintiffs “do not dispute that a debt is owed to SunTrust[,] . .
. nor do they dispute that Mr. Brown has failed to make these payments” (id. at 16).
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upon which relief may be granted and because SunTrust may rightfully
foreclose, SunTrust’s Motion to Dismiss Counts I and II (declaratory and
injunctive relief) is GRANTED.
In sum, the Complaints fail to state a claim against Defendant SunTrust
Mortgage. Accordingly, SunTrust’s Motion to Dismiss [17] is GRANTED
with regard to all Counts.
IV.

The BOC’s Motion to Dismiss [18]
Defendant BOC moves to dismiss the Complaints on several grounds.

First, the BOC argues that it is not subject to suit. (Brief in Support of
Defendant Forsyth County Board of Commissioners’ Motion to Dismiss
(“BOC’s Br.”), Dkt. [18-1] at 7.) Second, the BOC contends that Plaintiffs
have failed to properly serve the BOC pursuant to Federal Rule of Civil
Procedure 4. (Id. at 8.) Third, the BOC argues that the Court lacks subject
matter jurisdiction over the case because Plaintiffs fail to state a claim invoking
a federal question. (Id. at 9.) Fourth, the BOC contends that it is immune from
suits based on state law claims of negligence, fraud, and intentional infliction of
emotional distress. (Id. at 22.) Finally, the BOC argues that Plaintiffs have

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failed to allege a dispute sufficient to support a declaratory judgment. (Id. at
24.)
First, the BOC moves to dismiss on grounds that Plaintiffs fail to name
Forsyth County as a defendant and that a county Board of Commissioners
cannot be sued separately. The “capacity to sue or be sued is determined . . . by
the law of the state where the court is located.” Fed. R. Civ. P. 17(b). In
Georgia, actions against a county must name the county as a defendant.
Comm’rs of Rds. & Revenue of Houston Cnty. v. Howard, 1 S.E.2d 222 (Ga.
Ct. App. 1939). Further, the Eleventh Circuit has stated that a County Board of
Commissioners “is simply the County’s governing body and therefore cannot
be sued separately.” Abusaid v. Hillsborough Cnty. Bd. of Cnty. Comm’rs, 405
F.3d 1298, 1302 n.3 (11th Cir. 1992). Plaintiffs failed to name Forsyth County
as a defendant in this action. The BOC cannot be sued separately under
Georgia law and therefore it is not a proper defendant to this action.
Accordingly, the BOC’s Motion to Dismiss is GRANTED.6

6

In light of the Court’s finding that the BOC is not a proper Defendant in this
suit, the Court will not consider the BOC’s alternative grounds for dismissal.
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V.

The EHD’s Motion to Dismiss [31]
The EHD moves to dismiss the Complaints on several grounds [31].

First, the EHD contends that Plaintiffs failed to properly serve it pursuant to
Rule 4. (Brief in Support of Forsyth County Environmental Health
Department’s Motion to Dismiss (“EHD’s Br.”), Dkt. [31-1] at 5.) Second, the
EHD argues that Plaintiffs’ claims against it are all barred by the relevant
statutes of limitations. (Id. at 6.) Third, the EHD invokes Eleventh
Amendment immunity from suit. (Id.) Fourth, the EHD contends that Plaintiffs
fail to state a claim under federal law upon which relief may be granted. (Id. at
8.) Fifth, the EHD argues that the Georgia Tort Claims Act bars Plaintiffs’ state
law claims, noting that Plaintiffs have failed to give ante-litem notice and
properly serve the EHD under the Act. (Id. at 11-12.) EHD further argues that
O.C.G.A. § 50-21-24(8) & (9) bar Plaintiffs’ claims against it because
Plaintiffs’ allegations “pertain to [its] inspection and licensing powers or
functions”–for which the statute grants the EHD immunity from suit. (Id. at
13.) Finally, the EHD argues that Plaintiffs fail to state a claim under state law
upon which relief may be granted. (Id. at 14.)

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First, the EHD argues that Plaintiffs failed to effect proper service. (Id. at
5.) Specifically, it contends that service by certified mail is improper because
the EHD has not executed a waiver of personal service. (Id.) The Federal
Rules do not authorize service by certified mail, unless Defendant has waived
service of process. Fed. R. Civ. P. 4(j)(2); see also Madden v. Cleland, 105
F.R.D. 520 (N.D. Ga. 1985) (holding that service of summons and complaint by
certified mail is not permissible method of service if defendants have not
waived personal service).
Plaintiffs could also have effected service by complying with the laws of
Georgia, see Fed. R. Civ. P. 4(j)(2)(B), but, like the Federal Rules, Georgia
requires personal service unless Defendant executes a waiver of personal
service. See O.C.G.A. § 9-11-4; Madden, 105 F.R.E. at 523 (“Georgia law has
no provision for service by mail.”). Thus, service upon the EHD by certified
mail did not comply with the Federal Rules or the rules of the State of Georgia.
Moreover, the period in which Plaintiffs could have perfected service expired
on October 20, 2012, and Plaintiffs have not shown good cause for failing to

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effect service in a proper manner. See Fed. R. Civ. P. 4(m). Accordingly, the
EHD’s Motion to Dismiss the Complaints is GRANTED.7
VI.

Plaintiffs’ Motion for Default Judgment [38]
As a final matter, Plaintiffs move the Court to enter a Default Judgment

against Defendant Ivey Shaw [38]. In their Motion, Plaintiffs allege that Ivey
Shaw was served with the Summons and the Complaint on June 26, 2012 and
that Ivey Shaw did not file an answer within the time accorded by law.
(Affidavit in Support of Motion for Entry of Default (“Pls.’ Aff.”), Dkt. [38-1]
at 1.)
In its response brief, Ivey Shaw contends that service has not been
properly effected on it. (Defendant Ivey Shaw, LLC’s Response Brief (“Def.’s
Resp.”), Dkt. [37] at 1.) Ivey Shaw states that Plaintiffs attempted to serve it
via mail (id. at 2 (citing Dkt. [9])), and argues that service by mail is insufficient
because Ivey Shaw has not executed a waiver of personal service (id. at 2-3).
The Certificate of Service [9] indicates that attempted service upon Ivey Shaw
was effected by U.S. Mail. As discussed in Part V, supra, service of the

7

In light of the Court’s finding that the EHD has not been properly served in
this action, the Court will not consider the EHD’s alternative grounds for dismissal.
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Summons and Complaint by mail does not satisfy either the Federal Rules or
Georgia law.
Based on the foregoing, the Court concludes that Defendant Ivey Shaw
has not been properly served in this action. Accordingly, Plaintiffs’ Motion for
Default Judgment [38] is hereby DENIED. Moreover, the period in which
Plaintiffs could have perfected service expired on October 20, 2012. See Fed.
R. Civ. P. 4(m). Plaintiffs are ORDERED to show cause, if any they can,
within 14 days of the entry of this Order, why the claims against Ivey Shaw
should not be dismissed due to their failure to effect service within the time
required by Federal Rule of Civil Procedure 4(m).
Conclusion
In accordance with the foregoing, the Court finds the following:
Plaintiffs’ Motion to Issue Subpoena [14] is DENIED as moot; Defendant
SunTrust Mortgage’s Motion to Dismiss [17] is GRANTED; Defendant BOC’s
Motion to Dismiss [18] is GRANTED; Defendant EHD’s Motion to Dismiss
[31] is GRANTED; and Plaintiffs’ Motion for Default Judgment against Ivey
Shaw [38] is DENIED. Plaintiffs are ORDERED to show cause, if any they
can, within 14 days of the entry of this Order, why the claims against Ivey Shaw
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should not be dismissed due to their failure to effect service within the time
required by Federal Rule of Civil Procedure 4(m).
SO ORDERED, this 18th day of December, 2012.

________________________________
RICHARD W. STORY
United States District Judge

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