ENGLISH v. BANK OF AMERICA NA et al

Filing 29

ORDER denying 25 Motion for Reconsideration ; denying 25 Motion to Stay. Deadline to file objection to recommended decision extended to 11/14/13. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MARILYNN ENGLISH,
Plaintiff
v.
BANK OF AMERICA NA, et al.,
Defendants

)
)
)
)
) 1:13-cv-00265-DBH
)
)
)
)

ORDER RE: MOTION FOR
RECONSIDERATION (ECF NO. 25)
Today, October 29, 2013, considerably more than thirty days after it was “deemed” a
party to this proceeding, Bank of New York Mellon has filed an exhibit (ECF No. 28) to
supplement its removal papers that includes a letter from Bank of America’s prior counsel dated
May 15, 2013, explaining the alleged defects in the March 22, 2013, service of process made on
Bank of New York Mellon. Bank of New York Mellon’s removal papers include an affidavit of
service completed by a New York process server in April 2013. (ECF No. 12-4, PageID # 462.)
English also attached this exhibit to her opposition papers. (ECF No. 13-6, PageID # 566.) The
affidavit of service states that an authorized agent of Bank of New York Mellon was served on
March 22, 2013, at One Wall Street, New York, New York, with a summons, the amended
complaint, and several exhibits, as well as the Superior Court’s decision and order.
My recommendation concerning remand turned on two simple points, one relating to
federal law and one relating to state law. First, in the context of disputes over removal
jurisdiction, it is the removing defendant’s burden to show that removal was proper. Fayard v.
Northeast Vehicle Servs., LLC, 533 F.3d 42, 48 (1st Cir. 2008). “Among the elements of
removal that a defendant must prove by a preponderance of the evidence is its timeliness.”

McCormick v. Festiva Dev. Group, LLC, No. 09-cv-365-P-S, 2009 U.S. Dist. Lexis 126107, at
*3, 2009 WL 3615021, at *1 (D. Me. Oct. 27, 2009) (recommendation on motion to remand,
mooted upon plaintiff’s withdrawal of motion to remand). “Removal statutes should be strictly
construed against removal and doubts resolved in favor of remand.” Kingsley v. Lania, 221 F.
Supp. 93 at 95 (D. Mass. 2002). “All doubts are to be resolved against removal.” Fajen v.
Found. Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982).
Second, under Maine law “[i]t is the service of the summons, and not the proof of service,
that gives jurisdiction.” Christensen-Towne v. Dorey, 2002 ME 121, ¶ 4, 802 A.2d 1010, 1012
(quoting 1 Field, McKusick & Wroth, Maine Civil Practice § 4.15 (2d ed. 1970)). A process
server’s affidavit of service generally serves as prima facie proof of service. Vargelis v. Minieri,
620 A.2d 275, 276 (Me. 1993) (“The return of service of process by an officer should be given ‘a
presumption of regularity which may be overturned by positive evidence that the defendant was
not in fact served.’”) (quoting 1 Field, McKusick & Wroth, Maine Civil Practice § 4.14 (2d ed.
1970)). See also Jackson v. Borkowski, 627 A.2d 1010, 1012 (Me. 1993) (“The requirement for
proof of . . . service is intended to provide the court assurance that the defendant has adequate
notice and will not be prejudiced by having to defend a stale claim.”). If the defendant was
actually notified of the pendency of an action against it by the service it received, the court
should hesitate to find service ineffective based on technical noncompliance with Rule 4.
Vargelis, 620 A.2d at 276.
I spent a great deal of time scouring the removal papers attempting to ascertain what
defect, if any, Bank of New York Mellon claimed existed in the summons served upon it in
March. I found nothing because the removed papers did not contain the March 2013 summons
purportedly attached to the letter from Bank of America’s counsel that is the new exhibit in

2

support of the motion for reconsideration. The motion for reconsideration is denied. I cannot
reconsider what I never had before me to consider when I issued my recommendation. Moreover,
even if the Exhibit A filed on this date includes a copy of the summons served on Bank of New
York Mellon in March 2012, Bank of New York Mellon has only now effectively supported its
notice of removal with a necessary “process” exhibit. As of this date, we are well beyond the 30day period for removal even if this Court rejects the earlier recommendation and finds that the
effective date of service was July 1, 2013.
The motion for stay is also denied, although I will grant the defendants a brief extension
to file their objections to my recommended decision, until November 14, 2013.1
So Ordered.
October 29, 2013

/s/ Margaret J. Kravchuk
U.S. Magistrate Judge

1

This is a case where Bank of America, the original named defendant and primary party from whom
plaintiff seeks an accounting of funds, obtained an adverse ruling in state court and then used the claimed “defective”
service on Bank of New York Mellon to obtain an untimely removal of this case. In the final analysis, what is most
troubling about this case is not plaintiff’s claim against Bank of New York Mellon to have her mortgage declared
invalid. The disturbing part of this case is the plaintiff’s claim that she cannot obtain any information from Bank of
America regarding an accounting as to the status of her mortgage and the manner in which Bank of America applied
funds she furnished to the bank. In my view, those issues should properly be addressed in the state court, where this
case began back in June 2012.
3