Springer v. Bank of America, N.A. et al
Filing
8
ORDER granting 4 Motion to Dismiss for insufficient service of process, pursuant to Rule 12(b)(5). Signed by Judge Richard W. Story on 05/24/13. (sk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
ALAN N. SPRINGER,
Plaintiff,
v.
BANK OF AMERICA, N.A. sbm
to BAC HOME LOANS
SERVICING, LP fka
COUNTRYWIDE HOME LOAN
SERVICING, LP, and ASSURED
HOME FINANCIAL,
Defendants.
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CIVIL ACTION NO.
2:12-CV-00285-RWS
ORDER
This case comes before the Court on Defendant Bank of America, N.A.,
as successor by merger to BAC Home Loans Servicing, LP f/k/a Countrywide
Home Loans Servicing, LP’s (“BANA”) Motion to Dismiss [4]. After
reviewing the record, the Court enters the following Order.
Background
This case arises out of foreclosure proceedings on property located at
1640 Eaglerock Drive, Suwanee, Georgia, 30024 (the “Property”). (Compl.
Dkt. [1-1] ¶ 4.) On February 23, 2009, Plaintiff purchased the property with a
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loan and, as security for the loan, executed a security deed (the “Security
Deed”) in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”)
as nominee for Pine State Mortgage Corporation. (Id. ¶ 5; Notice of Removal,
Ex. C (Security Deed), Dkt. [1-3] at 1 of 8.)1 The Security Deed was assigned to
BANA on February 4, 2012. (Compl., Dkt. [1-1] ¶ 7; BANA’s Mot. to Dismiss,
Ex. B (Assignment), Dkt. [4-3] at 2 of 2.)
Plaintiff alleges that he began to attempt to refinance his loan with
Defendant Assured Home Financial (“Assured”) around September 2011.
(Compl. Dkt. [1-1] ¶¶ 8-9.) Plaintiff also alleges that Assured “told Plaintiff that
in order to begin the refinance, he would have to send the sum of $5,000.00 to
them, which Plaintiff did.” (Id. ¶ 10.) Plaintiff alleges that Assured and
“Defendant Bank” told him that he needed to be delinquent on his monthly
mortgage payments to qualify for a refinance. (Id. ¶¶ 11-12.) Finally, Plaintiff
1
The Court may take judicial notice of public records not attached to the
Complaint, including in this case the Security Deed, when considering a motion to
dismiss. Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1280 (11th Cir. 1998). This
does not convert the motion into one for summary judgment. Universal Express, Inc.
v. S.E.C., 177 F. App’x 52, 53 (11th Cir. 2006) (“A district court may take judicial
notice of certain facts without converting a motion to dismiss into a motion for
summary judgment. . . . Public records are among the permissible facts that a district
court may consider.”) (citations omitted).
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alleges that, “based on the advice of Defendants, [Plaintiff] did not make his
monthly mortgage payments” and that BANA initiated foreclosure proceedings
on the Property. (Id. ¶¶ 13-14.)
Based on the foregoing, Plaintiff filed the instant Complaint for damages
under the Georgia Fair Lending Act (“GFLA”). BANA now moves to dismiss
the Complaint for insufficient service of process and for failure to state a claim
upon which relief may be granted, pursuant to Federal Rule of Civil Procedure
(“Rule”) 12(b)(5) and 12(b)(6). (See generally BANA’s Br. in Supp. of Mot. to
Dismiss (“BANA’s Br.”), Dkt. [4-1].) Plaintiff has failed to file a response to
BANA’s Motion to Dismiss, which motion therefore is deemed unopposed. See
LR 7.1(B), NDGa (“Failure to file a response shall indicate that there is no
opposition to the motion.”).
Discussion
The Court agrees with BANA that the Complaint is due to be dismissed
for insufficient service of process, pursuant to Rule 12(b)(5). Service of process
on a corporate defendant, such as BANA, is governed by Rule 4(h)(1), which
provides that a corporation must be served in one of the following ways:
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(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). Rule 4(e)(1) provides, in turn, that an individual may be
served 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). Accordingly, “Rule 4 provides
that a plaintiff may serve a corporation in one of two ways.” Dyer v. Wal-Mart
Stores, Inc., 318 F. App’x 843, 844 (11th Cir. 2009). “First, a plaintiff may use
any method of service allowed in the state where the district court is located or
where service is made.” Id. (citing Fed. R. Civ. P. 4(h)(1), 4(e)(1)). “Second, a
plaintiff may effect service by ‘delivering a copy of the summons and complaint
to an officer, a managing or general agent, or any other agent authorized . . . 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.’” Id.
(quoting Fed. R. Civ. P. (4)(h)(1)) (emphasis omitted).
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In this case, Plaintiff’s only attempt to effect service of process on BANA
was to send a copy of the Complaint and Summons to Aldridge Conners, LLP
(“Aldridge”). (BANA’s Br., Dkt. [4-1] at 8 of 14; see also Notice of Removal,
Dkt. [1-1] at 14 of 16 (Certificate of Service).) Although this firm “was retained
by BANA to handle the foreclosure of the Property,” it does not represent
BANA in the instant case. (BANA’s Br., Dkt. [4-1] at 8 of 14.) As a result,
Aldridge Conners, LLP did not accept service on behalf of BANA. (Id.)
This Court finds that Plaintiff failed to effect service of process on
BANA in either of the two manners permitted under the Federal Rules of Civil
Procedure. First, Plaintiff did not serve BANA in the manner prescribed for
service on an individual under the law of Georgia, which is both the forum state
and the state where service was attempted. Under Georgia law, personal service
must be made upon a corporation 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).
Service on Aldridge does not satisfy this requirement.
As stated above, the second way in which a plaintiff may serve a
corporate defendant with process is “by delivering a copy of the summons and
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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)(B). Again, service on Aldridge does not satisfy this provision.
Accordingly, Plaintiff also failed to effect service of process on BANA in either
manner permitted by Rule 4(h)(1).
Rule 4(m) requires plaintiffs to properly serve all defendants within 120
days after the complaint is filed. Fed. R. Civ. P. 4(m). Specifically, this Rule
provides:
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. . . .
Id. Plaintiff has taken no steps to cure the insufficient service of process within
the 120-day period provided under Rule 4(m) and has shown no good cause for
this failure. Therefore, BANA’s Motion to Dismiss [4] is GRANTED for
insufficient service of process.2
2
“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 Med. Ctr., 896 F.2d 1313, 1317 (11th Cir.1990). Accordingly, where valid
service of process is found to be lacking, it is “improper for the district court to . . .
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Conclusion
In accordance with the foregoing, BANA’s Motion to Dismiss [4] is
GRANTED for insufficient service of process, pursuant to Rule 12(b)(5).
SO ORDERED, this 24th day of May, 2013.
_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE
reach[] the merits.” Jackson v. Warden, FCC Coleman–USP, 259 F. App’x 181,
182–83 (11th Cir. 2007). In light of the Court’s finding that Plaintiff failed to effect
proper service of process on BANA, the Court will not consider BANA’s argument
that the Complaint fails to state a claim upon which relief may be granted.
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