ENGLISH v. BANK OF AMERICA NA et al
ORDER AFFIRMING RECOMMENDED DECISION OF THE MAGISTRATE JUDGE - adopting Report and Recommended Decision re 23 Report and Recommendations for 8 Objection filed by MARILYNN ENGLISH, 11 Motion to Dismiss, Motion for Judgment on the Pleadings. By JUDGE D. BROCK HORNBY. (mnw)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BANK OF AMERICA, N.A.,
CIVIL NO. 1:13-CV-265-DBH
ORDER AFFIRMING RECOMMENDED DECISION
OF THE MAGISTRATE JUDGE
On October 18, 2013, the United States Magistrate Judge filed with the
court, with copies to the parties, her Recommended Decision Concerning
Removal Jurisdiction and Defendants’ Motion to Dismiss (ECF No. 23). The
defendant The Bank of New York Mellon filed an objection to the Recommended
Decision on November 14, 2013. Def. The Bank of New York Mellon’s Objection
to Magistrate Judge’s Recommendation for Remand (ECF No. 31).
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 amended or clarified below, and determine that no further
proceeding is necessary.
In addition to the Magistrate Judge’s proper analysis of the process
issue, given the documents presented to her, I make the following additional
The Bank of New York Mellon complains that the Magistrate
Judge did not address its argument that, wholly apart from the summons, the
amended complaint itself was defective when it was served in March 2013 and
therefore could not start the 30-day removal limitations period running. Def.
Recommendation for Remand at 2 n.3 & 4 n.4. But the plaintiff was complying
with the Maine Superior Court’s Order of March 11, 2013, which stated:
“Based upon the present pleadings, Plaintiff should have served Bank of New
York Mellon as a potentially necessary party to this action in order to permit a
full determination of the issues.
M.R. Civ. P. 19(a), 21; 14 M.R.S. § 5963.
Plaintiff is provided 60 days to serve the complaint and a copy of this order on
Bank of New York Mellon and file appropriate proof of service with the Court.”
Order at 6 (emphasis added).
There was no requirement that the plaintiff
amend her amended complaint once again before serving it as the state court
justice required. Although reserving judgment on whether The Bank of New
York Mellon truly was a necessary party, id. n.5, the court went on to strike
certain matters from the amended complaint and order that “Defendants shall
accordingly respond only to the claims for quiet title and declaratory judgment
as identified in this order.” id. at 7, and as #2 of its final entry in that
document, stated “Plaintiff is provided 60 days to serve Bank of New York
Mellon and join it to this action.”
The plaintiff did serve the amended
complaint and the court’s decision and order on The Bank of New York Mellon.
See Aff. of Service (ECF No. 13-6). Then, in a July 1, 2013, Status Conference
Order where The Bank of New York Mellon’s counsel agreed to accept service,
the state court justice stated: “by this Order, the Court directs Attorney Brown
to file a responsive pleading on behalf of Bank of New York Mellon to the
previously filed complaint.”
There was no suggestion of any defect in the
amended complaint that had been served.1 The state court justice was in the
best position to determine if the amended complaint was defective as to The
Bank of New York Mellon.
(Whether the complaint was defective for service
purposes is distinct from whether it fails to state a claim under Rule 12(b)(6).)
It is therefore ORDERED that the Recommended Decision of the Magistrate
Judge is hereby ADOPTED. The case is REMANDED to the Maine Superior Court
(Washington County) for any further action to be taken in connection with the
defendants’ motion to dismiss.
DATED THIS 9TH DAY OF DECEMBER, 2013
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE
1 I do not agree with The Bank of New York Mellon that the state justice’s deeming it a party as
of the date of that order somehow confirmed that the process was defective. Objection at 2.
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