Bartucci et al v. Wells Fargo Home Mortgage

Filing 24

ORDER. We accept and adopt the R&R 20 in part as set forth herein, and we overrule Plaintiffs' objections. We deny the motion for default judgment 8 and 9 but decline to dismiss the complaint. We grant Plaintiffs leave to file an amended complaint no later than January 9, 2015. We further grant Plaintiffs an extension of time to properly serve the complaint, through March 6, 2015. It is so ordered. Signed by the Honorable Marvin E. Aspen on 12/22/2014. Notice mailed by judge's staff (ntf, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LOUIS G. BARTUCCI and
MARCANTONIO GINO BARTUCCI,

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Plaintiffs,
v.
WELLS FARGO HOME MORTGAGE,
Defendant.

No. 14 C 5302
Hon. Marvin E. Aspen

ORDER
MARVIN E. ASPEN, District Judge:
On August 25, 2014, Plaintiffs Louis Bartucci and Marcantonio Bartucci, who are pro se,
filed a motion for default judgment on their complaint after Defendant Wells Fargo did not
answer or otherwise respond. (Dkt. Nos. 8–9.) At a hearing on September 11, 2014, we entered
and continued the motion. At that time, we instructed Plaintiffs that they needed to make sure
they properly served Defendants, who had not filed an appearance or attended the hearing. We
later referred Plaintiffs’ motion to Magistrate Judge Kim.
On November 19, 2014, Judge Kim issued his Report and Recommendation (“R&R”).
(Dkt. No. 20.) Judge Kim recommended that we deny Plaintiffs’ motion for default judgment
because Plaintiffs, who had attempted service on Defendant by certified mail, had not effectuated
proper service. Judge Kim further recommended that we dismiss the complaint without
prejudice, with leave to replead, because Plaintiff Louis cannot represent another pro se litigant
such as Marcantonio. (Id.)
Presently before us are Plaintiffs’ timely-filed objections to Judge Kim’s R&R, which we
consider under Federal Rule of Civil Procedure 72(b). Plaintiffs object to Judge Kim’s R&R
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because he lacks authority to enter dispositive orders and did not hold a hearing on their motion.
(Dkt. No. 22.) As set forth below, we adopt the R&R in part and overrule Plaintiffs’ objections.
We first address Judge Kim’s recommendation about Marcantonio’s status. As Judge
Kim correctly explained, Louis cannot represent another pro se litigant because Louis is not a
licensed attorney. See Nocula v. UGS Corp., 520 F.3d 719, 725 (7th Cir. 2008). Louis can
represent only himself. Marcantonio also may proceed on his own behalf—but only if he too
signs the complaint. In other words, Marcantonio is currently not a party to the litigation. He
can become a party only if and when a complaint is filed bearing his signature. See Fed. R. Civ.
P. 11(a) (requiring the pleading to be signed “personally if the party is unrepresented”). Because
he is not a party, Marcantonio is not entitled to any relief. Rather than dismiss the complaint, as
Judge Kim suggested, we grant leave for Plaintiffs to promptly file an amended complaint.
Turning to the R&R’s recommendation as to the pending motion, we agree with Judge
Kim that Plaintiffs’ motion for default judgment must be denied. Plaintiffs’ use of certified mail
does not constitute proper service of process upon Defendant. See Goode v. PennyMac Loan
Services, LLC, No. 14 C 1900, 2014 WL 6461689, at *9 (N.D. Ill. Nov. 18, 2014) (“Under the
Federal Rules and Illinois law, certified mail is generally not an adequate means of service for
corporations like [a bank].”). In Plaintiffs’ objections, Louis states that someone in the Clerk’s
office told him that service by mail would be appropriate. (Obj. ¶ 2.) Even assuming that
assertion is true, however, any such misinformation neither excuses Louis’ failure to effectively
serve the complaint, nor permits us to impose liability on Defendant for the alleged default. In
short, and as Judge Kim explained in the R&R, Defendant has not been served in accordance
with federal and state rules. Because Defendant has not been served, it is not obligated to
participate in the lawsuit and Plaintiffs therefore are not entitled to default judgment. We thus

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adopt Judge Kim’s recommendation and deny the motion for default judgment due to lack of
proper service.
CONCLUSION
We accept and adopt the R&R in part as set forth herein, and we overrule Plaintiffs’
objections. 1 We deny the motion for default judgment but decline to dismiss the complaint. We
grant Plaintiffs leave to file an amended complaint no later than January 9, 2015. We further
grant Plaintiffs an extension of time to properly serve the complaint, through March 6, 2015. It
is so ordered.

____________________________________
Marvin E. Aspen
United States District Judge

Dated: December 22, 2014
Chicago, Illinois

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We further add that Judge Kim’s R&R is procedurally sound. We need not address in detail
Plaintiffs’ claim that they were entitled to a hearing on their motion. Judge Kim was not
obligated to hold a hearing, particularly in light of the straight legal question presented him on
this record. In addition, Plaintiffs’ lengthy discussion of the scope of a magistrate judge’s
authority is irrelevant. (See Obj. at 2–5.) Judge Kim issued his R&R consistent with Rule 72(b)
and informed Plaintiffs of their opportunity to object to the R&R. His recommendation was not
final and remained subject to our review.
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