Rossell et al v. HSBC North America Holdings, Inc. et al
Filing
13
ORDER DENYING 4 Motion to Dismiss and EXTENDS the Rossells' time for service for 14 days from the issuance of this Order to submit a recast complaint. The Motion for More Definite Statement is GRANTED. The Rossells have 14 days from the i ssuance of this Order to (1) properly serve process on defendants and (2) submit a recast complaint free of the defects identified above. The Clerk of Court is DIRECTED to mail a copy of this Order to the Rossells at the address listed for them in the docket. Signed by Chief Judge Lisa G. Wood on 11/28/2016. (csr)
Sn
?lintteii States! IBtsitntt Court
for ti^e ^outfiem Btotritt of eorgta
iSntnoloick IBtbtsiion
JEFFREY ROSSELL and
MAUREEN A.
ROSSELL,
Plaintiffs,
No.
2:16-CV-76
V.
HSBC NORTH AMERICA HOLDINGS,
INC.;
HSBC
FINANCE
CORPORATION;
HSBC MORTGAGE
CORPORATION (USA); HSBC
MORTGAGE SERVICES, INC.; HSBC
USA INC.; and HSBC BANK USA,
Defendants.
ORDER
Before
Holdings,
Inc.,
Corporation
Inc.,
the
Court
HSBC
(USA),
For the
Motion
reasons
HSBC
HSBC
North
Corporation,
Mortgage
Services,
America
HSBC
Inc.,
Mortgage
HSBC
N.A.'s Motion to Dismiss and,
for More
herein,
the Motion for More
Defendants
Finance
and HSBC Bank USA,
Alternative,
is
Definite Statement,
the Motion
to
Dismiss
dkt.
USA
in the
no.
is DENIED,
4.
but
Definite Statement is GRANTED.
FACTUAL BACKGROUND
Jeffrey
against
A0 72A
(Rev. 8/82)
and Maureen
Defendants
in
A.
Rossell
Georgia
filed
superior
a
court
pro
on
se
lawsuit
April
26,
2016.
Dkt. No.
summons
by
Service,
Dkt.
1-1.
certified
The Rossells sent their complaint and a
mail
to
''Legal
Group,
HSBC
Inc" at the instruction of a superior court clerk.
Nos.
7 at 1,
7-1.
Their complaint named six HSBC entities as
Dkt.
No.
1-1 at
4.
Its factual
by HSBC North America Holdings,
id.
Mortgage
8,
17;
statement alleged wrongdoing
Inc.,
and "Lender,"
id. 5 3; "Defendants,"
11 13-16,
18.
"Defendants"
and "Lender" were not defined in the complaint.
contained six counts,
(1)
Lender
and
defendants.
The complaint
against:
Defendants,
for
fraud,
deceit,
and
negligent misrepresentation, id. 11 19-26;
(2) Lender and Defendants, for negligence, id.
(3)
Lender,
including but
not
for
violations
limited to
.
of
.
"state
.
Civil Code Section 13-8-15," and HAMP,
(4)
id.
Lender,
and
RESPA[,]
27-31;
federal
.
.
.
law,
Georgia
id. 11 32-37;
for
an injunction and declaratory judgment,
for
reformation
11 38-43;
(5)
Lender,
of
contract,
id.
SISI
44-52;
(6)
Lender and "Does," for breach of implied covenant of
and
good faith and fair dealing.
Id. 11 53-58.
Defendants removed the case to the Court on May 26,
Dkt.
No.
1.
On June 2,
2016,
2016.
Defendants moved for dismissal
of the case for failure to serve process,
or,
for
4.
more
definite
statement.
Dkt.
No.
alternatively,
The
Rossells
responded to the motion to dismiss, dkt. no. 7, and Defendants
replied.
Dkt.
No.
9.
The
motions
are
now
ripe
for
resolution.
The
Court
will
not
dismiss
the
case,
but
will
instead
order the Rossells to properly serve process within 14 days.
The
Court
will
grant
Defendants'
motion
for
more
definite
statement.
LEGAL
""After removal,
STANDARDS
the sufficiency of service of process is
determined according to federal law."
Co.,
in
185 F.R.D.
service
Procedure]
may
4."
693,
696
be
(M.D. Ga. 1998).
cured
Id.
under
74
Swift Transp.
""Thus, any defects
[Federal]
Rule
[of
Civil
Rule 4 ""must be construed leniently with
regard to pro se litigants."
F.3d 72,
Rentz v.
{6th Cir.
Habib v. Gen. Motors Corp.,
15
1994).
A complaint must ""give the defendant fair notice of what
the plaintiff's claim is and the grounds upon which it rests."
Baldwin Cty.
(Stevens,
41,
47
J.,
Welcome Ctr.
dissenting)
(1957)).
""A
v.
Brown,
(quoting Conley v.
party
statement of a pleading .
466 U.S.
.
may
.
move
for
147,
164
(1984)
Gibson,
355 U.S.
a
definite
more
which is so vague or ambiguous
that the party cannot reasonably prepare a response."
Fed. R.
Civ. P. 12(e).
'''The basis for granting a Rule 12(e) motion is
unintelligibility.
a more definite
CV407-194,
Courts
generally
statement."
Stephens
2008 WL 1733668,
at
(internal citation omitted).
*1
disfavor
v.
motions
for
States,
No.
United
(S.D.
Ga.
Apr.
"[W]hile pro se
14,
2008)
litigants are
bound by the same rules of procedure and practice applicable
to
all
litigants,
the
courts
afford
great
lenience
to
complaints drafted by individuals who are unable to obtain the
services of legal counsel."
Id.
DISCUSSION
I.
THE ROSSELLS HAVE 14 DAYS TO PROPERLY SERVE PROCESS.
The
Rossells
Defendants.
failed
Mailing a
to
properly
complaint
serve
and summons
process
to
upon
Defendants'
supposed attorneys did not comply with O.C.G.A. § 9-11-4.
that this case has been removed to federal court,
need to
with
serve process
Federal
Defendants
Rule of Civil
However,
4(m)
on
Procedure
the Rossells'
in a
the Rossells
way that
improperly
4.
case will not be dismissed.
period"
serving
if
the
process.
Rossells
The
have
Rossells
good
Rule
cause
followed
instruction given to them by a superior court clerk.
at
complies
requires the Court to "extend the time for service for an
appropriate
7
Now
1.
Comm' rs,
This
476
is good cause.
F.3d
1277,
1281
Lepone-Dempsey v.
(11th
Cir.
2007)
for
faulty
Dkt. No.
Carroll Cty.
(identifying
^'reliance on faulty advice" as good cause
Frank,
929
F.2d 603,
604
(11th Cir.
(quoting Prisco v.
1991)
(per
curiam) ) ) .
Therefore, the Court DENIES Defendants' motion to dismiss and
EXTENDS the
Rossells'
time
for
service
for 14 days from the
Issuance of this Order.
II.
DEFENDANTS'
MOTION FOR MORE DEFINITE STATEMENT IS GRANTED.
Defendants move for more definite statement.
at 3.
This motion is GRANTED.^
Dkt.
No.
4
A complaint must ^^give the
defendant fair notice of what the plaintiff s claim is and the
grounds upon which it rests."
U.S.
at
164
U.S. at 47).
from the
(1)
relate.
J.,
dissenting)
(quoting
Conley,
355
Three elements of a proper complaint are missing
Rossells' :
Claims have to specify the defendant to which they
See
2457526,
at
2441916
(S.D.
which
(Stevens,
Baldwin Cty. Welcome Ctr., 466
Singleton
*2
(S.D.
Ga.
Defendants
v.
Ga.
June 16,
acted
Berqlin,
May
2011)
10,
No.
CV610-097,
2011
WL
adopted,
2011
WL
2011),
(^'Plaintiff fails to explain
negligently
or
with
deliberate
^
The
Court
does
not,
however,
accept
Defendants'
characterization of the Rossell's complaint as a '"shotgun"
pleading.
Id. at 3-4.
The complaint does not "contain []
several counts,
each one incorporating by reference the
allegations of its predecessors, leading to a situation where
most
of
the
counts
(i.e.,
all
but
the
first)
contain
irrelevant
factual
allegations
and
legal
conclusions."
Strategic Income Fund,
305
F.3d 1293,
1295
L.L.C.
(11th
particular to each count.
v. Spear, Leeds & Kelloqq Corp.,
Cir.
2002).
It gives
facts
indifference, violated his constitutional rights, or violated
the
Freedom
required
of
to
rights.").
Information
guess
how
they
The Rossells'
^'Lender,"
Act.
Defendants
allegedly
should
violated
not
be
Plaintiffs
complaint alleges counts against
'"Defendants,"
and
"Does,"
none
of
whom
are
identified.
(2)
and/or
Each claim has to specify a single "source of law
legal
theory
Gibbons
liability."
upon
v.
5460593, at *4
which
[the
McBride,
No.
assert[]
CV
(S.D. Ga. Oct. 27, 2014).
plaintiffs]
2014
deceit,
WL
Two of the Rossells'
counts allege multiple causes of action.
{alleging fraud,
114-056,
Dkt.
No.
1-1 at 7
and negligent misrepresentation),
9
(alleging violations of RESPA, HAMP, and O.C.G.A. § 13-8-15).
(3)
Enough
facts
have
to
be
clearly and consistently
pled to put Defendants on notice of the grounds of each claim.
See Baldwin Cty.
dissenting)
Welcome Ctr.,
(quoting Conley,
466 U.S.
355 U.S.
at
164
at 47).
(Stevens,
J.,
The Rossells'
complaint twice falls short of pleading facts adequately :
^ Defendants'
three other gripes about the complaint's facts
are unconvincing.
The Court rejects Defendants' argument that
the complaint is contradictory as to the foreseeability of the
Rossells' default; read liberally, as a pro se complaint must
be, the complaint pleads that the default was foreseen to
Defendants, but not the Rossells.
7; Stephens v. United States, No.
at *1
(S.D.
Ga.
Apr.
are read liberally).
14,
2008)
Dkt. Nos. 4 at 6, 1-1 at 6CV407-194, 2008 WL 1733668,
(noting that pro se pleadings
(a)
The complaint alleges both that
^^Plaintiffs'
attempts to modify their mortgage with Lender were thwarted by
Lender's
refusal
discussion
'''Lender
with
Id.
(b)
have
any
Plaintiffs,"
approved
Plaintiffs."
to
a
dkt.
meaningful
no.
1-1
loan modification
at
modification
11,
sometime
in
and
2014
that
for
at 12.
Facts
regarding
negotiations with Defendants,
the
Rossells'
and Defendants'
initial
issuance of a
loan to the Rossells, underpin several counts, see id. at 7-8,
10, 12-13, but are not pled.
The Rossells need to remedy these failures.
thus GRANTS Defendants'
The Court
motion for more definite statement and
gives the Rossells 14 days from the issuance of this Order to
submit a recast complaint.
CONCLUSION
For the reasons
DENIED.
The
above.
Defendants'
Motion to
Dismiss is
The Rossells have 14 days from the issuance of this
Court
sees
no
contradiction
in
the
complaint's
pleading that
the Rossells
began suffering medical and
financial difficulties in 2007 but only sent a hardship letter
to Defendants
The
Court
in 2015.
does
not
Dkt.
see
No.
a
1-1 at
5-6.
contradiction
so much as
a
lack
of chronological order in the Rossells pleading that they went
through a fraudulent loan modification process in 2014 two
paragraphs after pleading the 2015 letter.
Id. at 6, 12.
Of course, the Rossells should clarify these and any other
points in their recast complaint.
Defendants will be free to
attack the sensibility, consistency, and credibility of the
Rossells' pleadings throughout these proceedings.
Order to
(1)
submit
a
recast
above.
The Clerk of Court is DIRECTED to mail a copy of this
Order to
the
properly serve
complaint
Rossells
at
process
free
the
of
address
on
the
defendants
defects
listed for
and
(2)
identified
them in the
docket.
SO ORDERED, this 28th day of November, 2016.
tffSA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?