Nationstar Mortgage, LLC v. Powell et al

Filing 34

ORDER directing the Plaintiffs to file a Second Amended Complaint, which names Dianne Powell Morris as a Defendant and includes allegations against her, within SEVEN (7) DAYS of the entry of this Order. Additionally, Plaintiffs are ORDERED to file a Motion for Default Judgment as to Defendants the Unknown Heirs of Bernice Powell and the Unknown Heirs of Betty Hodges Powell within SEVEN (7) DAYS of the entry of this Order. The Court also ORDERS Plaintiffs to tender the outstanding publication co sts to the Clerk of Court within SEVEN (7) DAYS of the entry of this Order. The Court finds the United States and MetLife have not been properly served (due to deficiencies in the manner and method of service and untimeliness of service, respectiv ely) and therefore REOPENS and EXTENDS the time for service on the United States and on MetLife for a period of THIRTY (30) DAYS following the filing of Plaintiffs' Second Amended Complaint. The Court DIRECTS the Clerk of Court to WITHDRAW the Entries of Default as to the United States and MetLife. (Compliance due by 5/7/2019) Amended Complaint due by 5/7/2019.) Signed by District Judge R. Stan Baker on 4/30/19. (jrb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
NATIONSTAR MORTGAGE, LLC; and
FEDERAL NATIONAL MORTGAGE
ASSOCIATION, INC.,
Plaintiffs,

CIVIL ACTION NO.: 6:17-cv-84

v.
METLIFE HOME LOANS; THE UNITED
STATES; UNKNOWN HEIRS OF BERNICE
POWELL; and UNKNOWN HEIRS OF
BETTY HODGES POWELL,
Defendants.

ORDER
On January 14, 2019, the Court ordered Plaintiffs Nationstar Mortgage, LLC, and Federal
National Mortgage Association, Inc., to show cause why the Court should not dismiss this case for
failure to prosecute and failure to follow the Federal Rules of Civil Procedure and the Court’s
Local Rules. (Doc. 31.) The Court listed eleven specific ways that Plaintiffs had failed to fulfill
their obligation to diligently prosecute this action, directed Plaintiffs to specifically address and
show cause for each of the eleven errors, and directed Plaintiffs to explain their intended course
for the future prosecution of the case. (Id. at pp. 4–7.)
Plaintiffs timely filed a Response, which the Court has reviewed. (Doc. 32.) Throughout
the Response, Plaintiffs emphasize that a different attorney (albeit from the same law firm) is now
handling the case and, as a result, all issues will be corrected, and Plaintiffs will “prosecute the
case in a diligent manner going forward.” (Id. at p. 2.) With regard with the various service
deficiencies noted by the Court, Plaintiffs avow that, if the Court permits the case to proceed and

grants an extension of time to do so, they will “properly serve all defendants as required,” including
serving copies of all pleadings (including motions) on all parties. (Id. at pp. 2–3.) Specifically
as to Defendant the United States, Plaintiffs concede that they have not properly effectuated service
in accordance with Federal Rule of Civil Procedure 4(i)(1)(A), and they therefore request that the
Court withdraw the Clerk’s Entry of Default as to the United States, (doc. 15), and grant an
extension of time for proper service of the United States. (Doc. 32, pp. 3–4.) Specifically as to
Defendant MetLife Home Loans, Plaintiffs concede that they did not serve MetLife until after Rule
4(m)’s 90-day service period had expired, but they emphasize that MetLife has not filed an answer
or a motion to dismiss raising the issue of timeliness of service and they ask that the service delay
be excused or in the alternative that the Court grant them an extension of time to re-serve MetLife.
(Id. at p. 3.) Plaintiffs also acknowledge that, even though they sought leave of Court to add
Dianne Powell Morris as a Defendant, she was left out of the Amended Complaint that they were
permitted to file. (Id. at p. 5.) They urge that if the Court allows them to continue to prosecute
this action, they will “effectuate service of the Amended Complaint” on her, 1 and they urge that,
since no parties have filed answers, Ms. Morris will not be prejudiced by being added and served
now. (Id.)
Regarding their failure to deposit the costs for service by publication on the Unknown Heirs
of Bernice Powell and the Unknown Heirs of Betty Hodges Powell with the Court, Plaintiffs ask
the Court to excuse their tardiness in making the payment, and they advise that “the moneys will
be forwarded to the Clerk’s office as soon as possible. … [and if] allowed by this Court, Plaintiffs
will immediately deposit the necessary costs to the Court.” (Id. at p. 6.)
Finally, Plaintiffs responded to the Court’s concern that more than six months had passed

1 The Amended Complaint, however, contains no mention of Ms. Morris, so a second Amended
Complaint, naming her as a Defendant and adding allegations concerning her, would be necessary.
2

since the Affidavit of Publication was filed with the Court without Plaintiffs having moved for
entry of default as to the Unknown Heirs of Bernice Powell and the Unknown Heirs of Betty
Hodges Powell. (Doc. 32, pp. 1, 6.) Plaintiffs state that, “[c]oncurrently herewith this Response,
Plaintiffs are filing their Motion for Default Judgment as to Defendants the Unknown Heirs of
Bernice Powell and the Unknown Heirs of Betty Hodges Powell.” (Id. at p. 1.) The Court,
however, has not been able to locate any such motion on the docket for this case.
The Court finds that Plaintiffs have shown good cause to give Plaintiffs a second chance
at prosecuting this case; however, the Court expects Plaintiffs’ counsel to proceed with expediency
and diligence given the amount of time that has elapsed since the case was initially filed and the
numerous errors in the prosecution of this case. In order to get the case back on track, the Court
ORDERS Plaintiffs to file a Second Amended Complaint, which names Dianne Powell Morris as
a Defendant and includes allegations against her, within SEVEN (7) DAYS of the entry of this
Order. Additionally, Plaintiffs are ORDERED to file a Motion for Default Judgment as to
Defendants the Unknown Heirs of Bernice Powell and the Unknown Heirs of Betty Hodges Powell
within SEVEN (7) DAYS of the entry of this Order. The Court also ORDERS Plaintiffs to tender
the outstanding publication costs to the Clerk of Court within SEVEN (7) DAYS of the entry of
this Order. The Court finds the United States and MetLife have not been properly served (due to
deficiencies in the manner and method of service and untimeliness of service, respectively) and
therefore REOPENS and EXTENDS the time for service on the United States and on MetLife for
a period of THIRTY (30) DAYS following the filing of Plaintiffs’ Second Amended Complaint. 2
Finally, the Court DIRECTS the Clerk of Court to WITHDRAW the Entries of Default as to the
United States and MetLife, (doc. 15).

2 Service on Dianne Powell Morris is governed by Fed. R. Civ. P. 4.
3

The Court forewarns Plaintiffs that though the Court has given them another chance to
properly prosecute this case, there will be no third bite at the proverbial apple.
SO ORDERED, this 30th day of April, 2019.

R. STAN BAKER
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA

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