PRATT v. BANK OF AMERICA NA

Filing 19

ORDER AFFIRMING RECOMMENDED DECISION OF THE MAGISTRATE JUDGE - adopting Report and Recommended Decision re 15 Report and Recommendations. By JUDGE D. BROCK HORNBY. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
RICHARD PERRY PRATT,
PLAINTIFF
v.
BANK OF AMERICA,
DEFENDANT

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CIVIL NO. 1:13-CV-249-DBH

ORDER AFFIRMING RECOMMENDED DECISION
OF THE MAGISTRATE JUDGE
On September 4, 2013, the United States Magistrate Judge filed with the
court, with copies to the parties, her Recommended Decision. The plaintiff filed
objections to the Recommended Decision on September 19 and September 25,
2013. I have reviewed and considered the Recommended Decision, together with
the entire record; I have made a de novo determination of all matters adjudicated
by the Recommended Decision; and I concur with the recommendations of the
United States Magistrate Judge for the reasons set forth in the Recommended
Decision, as clarified below, and determine that no further proceeding is
necessary.
I also observe that the defendant was not in default because, under the
Maine Rules of Civil Procedure governing service of process by mail, the time runs
from the date when the defendant mails the acknowledgment of service. See Ford
v. Nationwide Mutual Fire Ins. Co., Civil No. 01-133-P-H, 2001 WL 667834, at *12 (D. Me. June 13, 2001); 1991 Advisory Committee Note to Rule 4 (“the date on

which the defendant mails the acknowledgement, which constitutes acceptance of
this form of service, is the date of service for purposes of the time for answer”);
Charles Harvey, 2 Maine Practice Series at 152 (3d ed. 2011).

Here, the

defendant signed the acknowledgment on June 17, 2013, and there is no
suggestion that it mailed the form before signing it. Thus, the defendant was not
in default on July 8, 2013, when the plaintiff moved for default (under the Maine
Rules, the time for answer is 20 days after service and, if that day is a Saturday,
Sunday or legal holiday—here July 7, 2013, was a Sunday—then the next
business day). The defendant timely removed the lawsuit to this court on July 8,
2013, see 28 U.S.C. § 1446(b)(1) (allowing 30 days for removal; here the defendant
says that it first received the papers on June 13 and the plaintiff says June 11,
both less than 30 days from July 8). The plaintiff’s other objections (e.g., that
this is a “Corporate Court” and that his case should be heard in a “Common
Court” and that the defendant as a corporation cannot be treated as a citizen in
determining federal jurisdiction under the diversity of citizenship provisions of
federal statutes) are frivolous.
It is therefore ORDERED that the Recommended Decision of the Magistrate
Judge is hereby ADOPTED.

The plaintiff’s motions for remand and for entry of

default are DENIED. The defendant’s motion to dismiss is GRANTED.
SO ORDERED.
DATED THIS 21ST DAY OF OCTOBER, 2013
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

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