Turner v. Lowden, et al

Filing 19

MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 10/15/13. (c/m 10/15/13 bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
RODEL R. TURNER,

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Plaintiff,

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v.

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JACOB LOWDEN, et al.,

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Defendants.

Civil Action No. RDB-12-1372

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MEMORANDUM OPINION
Pending before this Court are (1) Defendant Bank of America’s Motion to Set Aside
Entry of Default and for Leave to Respond to the Complaint (ECF No. 11) and (2)
Defendant Bank of America’s Motion to Dismiss (ECF No. 12). These motions assert that
the pro se Plaintiff Turner failed to properly serve Bank of America and that he has failed to
adequately state a cause of action. The parties’ submissions have been reviewed and no
hearing is necessary. See Local Rule 105.6 (D. Md. 2011). For the reasons that follow,
Defendant Bank of America’s Motion to Set Aside Entry of Default and for Leave to
Respond to the Complaint is GRANTED.

For similar reasons, Defendant Bank of

America’s Motion to Dismiss (ECF No. 12) is also GRANTED and this case is
DISMISSED WITHOUT PREJUDICE.
BACKGROUND
In ruling on a motion to dismiss, the factual allegations in the plaintiff’s complaint
must be accepted as true and those facts must be construed in the light most favorable to the
plaintiff. Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Moreover, a pro se
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litigant’s complaint should not be dismissed unless it appears beyond doubt that the litigant
can prove no set of facts in support of his claim that would entitle him to relief. Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
Plaintiff Ridel R. Turner (“Plaintiff”) filed this action against Jacob Lowden (“Mr.
Lowden”) and Bank of America1 on May 4, 2012. See generally Compl. The claims in the
Complaint appear to relate to a residential home loan that Plaintiff alleges Defendants
originated and serviced. See Compl. at 5.2 While Plaintiff’s Complaint is not structured into
distinct counts, Plaintiff appears to make claims for breach of contract and unjust
enrichment. 3 See id. On May 4, 2012, this Court entered an Order granting Plaintiff’s
Motion for Leave to Proceed in Forma Pauperis (ECF No. 3) and also directing Plaintiff to
provide information to the United States Marshall Service (the “U.S. Marshalls”) so that the
U.S. Marshalls could serve Defendants. See Order, May 14, 2012, ECF No. 3.
Despite the Court’s suggestion that Plaintiff check with the Maryland State
Department of Assessments and Taxation to determine whether Bank of America had a
resident agent in Maryland, Plaintiff instead gave the U.S. Marshalls the address of “9700
Bissonnet Street, Suite 1500, Houston Texas 77036” for Bank of America. 4 The U.S.

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Defendant’s Motions point out that the Complaint names “Bank of America,” which is a forfeited corporate entity.
See, e.g., Def.’s Mem. Supp. Mot. Set Aside, ECF No. 11-1, at 2. However, because the Complaint appears to relate
to a residential home loan, Bank of America, N.A. has responded to the allegations “on behalf of the entity sued
erroneously as ‘Bank of America.’” Id. at 1-2 n.1.
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Because Plaintiff’s Complaint contains neither paragraph nor page numbers, the Court refers to pages of the
Complaint by their ECF page numbers.
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Specifically, Plaintiff alleges that Bank of America charged him an undisclosed $12,700 fee and failed to pay
“back bills” to Verizon and Worldcom Wireless. Plaintiff also alleges that Bank of America has been unjustly
enriched by delaying a loan modification and charging double the market interest rate during that period.
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No summons has issued for defendant Jacob Lowden.

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Marshall Service then sent the summons and Complaint to the Bissonnet Street address
where it was signed for and received by some unknown entity or person. See United States
Marshall Service Process Receipt and Return, ECF No. 5. The 9700 Bissonnet Street
address, however, is not the address of Bank of America’s registered agent in Texas, nor is it
an address listed on file with the State Department of Assessments and Taxation.
In a letter received by the Court on March 21, 2013 (ECF No. 8), Plaintiff requested
entry of default against Bank of America. On March 27, 2013, the Clerk of Court entered an
Order of Default (ECF No. 9) against Bank of America.5 Bank of America first became
aware of the suit and subsequent entry of default on April 16, 2013 when Plaintiff walked
into a Bank of America branch in Glen Burnie, Maryland and gave a branch employee a
copy of the Order of Default.
On April 26, 2013, Bank of America filed its Motion to Set Aside Default and for
Leave to Respond to the Complaint (ECF No. 11). On May 17, 2013, Bank of America also
filed a Motion to Dismiss (ECF No. 12). Thereafter, on May 22, 2013, the court received
two letters from Plaintiff (ECF Nos. 14, 15) appearing to contest Bank of America’s efforts
to dismiss the case and requesting that this Court enter default judgment. On May 31, 2013,
however, this Court returned Plaintiff’s letters due to Plaintiff’s failure to provide a
certificate of service pursuant to Local Rule 102 (D. Md. 2011) and Rule 5 of the Federal
Rules of Civil Procedure (ECF Nos. 16, 17). Plaintiff then sent another letter to the Court,

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On April 3, 2013, the Court received a letter from Plaintiff requesting the entry of default judgment against “Bank
of America.” See ECF No. 10.

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attaching a certified mail receipt.6
STANDARD OF REVIEW
I.

Motion to Set Aside Default Pursuant to Rule 55(c).
Under Rule 55 of the Federal Rules of Civil Procedure, the entry of a default

judgment is a two-step process. Rule 55(a) governs the initial step—the entry of default by
the clerk of the court—which occurs “[w]hen a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown
by affidavit or otherwise.” The second step—default judgment—is entered by the court. See
Rule 55(b). However, “[a] defendant’s default does not automatically entitle the plaintiff to
entry of a default judgment; rather, that decision is left to the discretion of the court.” See
Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001).
Moreover, pursuant to Rule 55(c), the “Court may set aside an entry of default for
good cause shown.”7 Fed. R. Civ. Proc. 55(c). The United States Court of Appeals for the
Fourth Circuit has “repeatedly expressed a strong preference that, as a general matter,
defaults be avoided and that claims and defenses be disposed of on their merits.” Colleton
Preparatory Acad., Inc. v. Hoover Universal, Inc., 616 F.3d 413, 417 (4th Cir. 2010). When
addressing a Rule 55(c) motion to set aside a default, this Court considers the following
factors:
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The receipt appears to be dated June 4, 2012. Presumably, the purpose of the receipt is to show that Plaintiff has
been in contact with Bank of America and that Bank of America had actual notice of the suit. See Pl.’s Letter, June
6, 2013, at 2 (“[H]ere is one copy of the Certified Mail Receipts I send with each payment each month to Bank of
America home loans . . . .”). Unlike Plaintiff’s earlier correspondence, this letter was not returned—even though it
appears that Plaintiff again failed to provide proof of service.

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Had a default judgment been entered, this Court would have had to apply the more demanding standard of Rule
60(b). Hearron v. premier Mfg. Support Servs., Inc., No. 10-2422-KHV, 2010 WL 4921789, at *2 (D. Kan. Nov.
29, 2010); see also Consolidated Masonry & Fireproofing, Inc. v. Wagman Const. Corp., 383 F.2d 249, 251 (4th
Cir. 1967).

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[1] whether the moving party has a meritorious defense, [2]
whether it acts with reasonable promptness, [3] the personal
responsibility of the defaulting party, [4] the prejudice to the party,
[5] whether there is a history of dilatory action, and [6] the
availability of sanctions less drastic.

Payne ex rel. Estate of Calzada v. Brake, 439 F.3d 198, 204-05 (4th Cir. 2006). Finally, motions
pursuant to Rule 55(c) are left “largely within the discretion of the trial judge.” Id. at 205.
II.

Motion to Dismiss Pursuant to Rule 12(b)(5).
A motion to dismiss for insufficient service of process is permitted by Federal Rule

12(b)(5). Once service has been contested, the plaintiff bears the burden of establishing the
validity of service pursuant to Rule 4. See Norlock v. City of Garland, 768 F.2d 654, 656 (5th
Cir. 1985). Generally, when service of process gives the defendant actual notice of the
pending action, the courts may construe Rule 4 liberally to effectuate service and uphold the
jurisdiction of the court. Karlsson v. Rabinowitz, 318 F.2d 666, 668 (4th Cir. 1963); Armco, Inc.
v. Penrod–Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984). Thus, when there is
actual notice, failure to strictly comply with Rule 4 may not invalidate the service of process;
however, plain requirements for the means of effecting service of process may not be
ignored. Armco, 733 F.2d at 1089.
III.

Motion to Dismiss Pursuant to Rule 12(b)(6)

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a “short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a
complaint if it fails to state a claim upon which relief can be granted; therefore, “the purpose
of Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve contests

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surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). In ruling on such a motion, this Court is
guided by the Supreme Court’s instructions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), which “require complaints in civil actions
be alleged with greater specificity than previously was required.” Walters v. McMahen, 684
F.3d 435, 439 (4th Cir. 2012) (citation omitted). The Supreme Court’s Twombly decision
articulated “[t]wo working principles” courts must employ when ruling on Rule 12(b)(6)
motions to dismiss. Iqbal, 556 U.S. at 678.
First, while a court must accept as true all the factual allegations contained in the
complaint, legal conclusions drawn from those facts are not afforded such deference. Id.
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice” to plead a claim.). In the context of pro se litigants, however,
pleadings are “to be liberally construed,” and are “held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation
omitted); accord Brown v. N.C. Dept. of Corr., 612 F.3d 720, 724 (4th Cir. 2010). Second, even a
pro se complaint must be dismissed if it does not allege “a plausible claim for relief.” Iqbal,
556 U.S. at 679; see also O’Neil v. Ponzi, 394 F. App’x. 795, 796 (2d Cir. 2010). Under the
plausibility standard, a complaint must contain “more than labels and conclusions” or a
“formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555.
Although the plausibility requirement does not impose a “probability requirement,” id. at
556, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
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alleged.” Iqbal, 556 U.S. at 663; see also Robertson v. Sea Pines Real Estate Cos., 679 F.3d 278,
291 (4th Cir. 2012) (“A complaint need not make a case against a defendant or forecast evidence
sufficient to prove an element of the claim. It need only allege facts sufficient to state elements
of the claim.”) (emphasis in original) (internal quotation marks and citation omitted). In
short, a court must “draw on its judicial experience and common sense” to determine
whether the pleader has stated a plausible claim for relief.” Iqbal, 556 U.S. at 664. Finally,
“[w]hile pro se complaints may ‘represent the work of an untutored hand requiring special
judicial solicitude,’ a district court is not required to recognize ‘obscure or extravagant claims
defying the most concerted efforts to unravel them.’ ” Weller v. Dept. of Social Servs. for City of
Baltimore, 901 F.2d 397, 391 (4th Cir. 1990) (quoting Beaudett v. City of Hampton, 775 F.2d
1274, 1277 (4th Cir. 1985), cert denied, 475 U.S. 1088 (1986)).
ANALYSIS
I.

Bank of America’s Motion to Set Aside Entry of Default and for Leave to
Respond to the Complaint.
Bank of America first moves to set aside the entry of default entered by the Clerk on

March 27, 2013 (ECF No. 9). In support of its position, Bank of America argues that
Plaintiff failed to effectuate proper service of process; that Plaintiff would not be prejudiced
by setting aside the entry of default; and that Bank of America has a meritorious defense in
that Plaintiff’s Complaint would not survive a Rule 12(b)(6) Motion to Dismiss.
A. Rule 55(c) & Failure to Effectuate Service of Process
Rule 55(c) permits trial courts to “set aside an entry of default for good cause
shown.” However, before a court may enter a default or a default judgment, the defendant
must receive service of process. See Maryland State Firemen’s Ass’n v. Chaves, 166 F.R.D. 353,
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354 (D. Md. 1996) (“It is axiomatic that service of process must be effective under the
Federal Rules of Civil Procedure before a default or default judgment may be entered against
a defendant.”). Without proper service of process, this Court is without jurisdiction over the
defendant. Fed. Deposit Ins. Corp. v. Spartan Mining Co., Inc., 96 F.R.D. 677, 680 (S.D.W.V.
1983) (“Service of process serves . . . dual function[s], both related to the jurisdiction of the
court. It is necessary to bring a defendant within the power of the court. It also serves to
satisfy the requirements of due process by giving notice to a defendant of the proceeding
against him.”). Thus, failure to effectuate proper service of process would constitute “good
cause” for purposes of Rule 55(c). See Hearron v. Premier Mfg. Support Servs., Inc., 2010 WL
4921789, at *2 (D. Kan. Nov. 29, 2010) (setting aside default where defendant was not
properly served).
Rule 4(h) of the Federal Rules of Civil Procedure states the requirement for service of
process on a corporation in the federal courts. Under Rule 4(h)(1), one method by which a
plaintiff may effectuate service on a corporation is “by delivering a copy of the summons
and of the complaint to an officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of process and—if the agent is one
authorized by statute and the statute so requires—by also mailing a copy of each to the
defendant.”8 Alternatively, plaintiffs may serve process in a manner approved by state law
for an action brought in courts of general jurisdiction in the state where the district court is
located or where service is made. See Rule 4(h)(1)(A); Rule 4(e)(1). Thus, Plaintiff could

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This method only applies to corporations within a judicial district of the United States. There is a separate method
of service on a corporation when the corporation exists he only other methods for service of process on a corporation
when service is performed outside a judicial district of the United States. See Rule 4(h)(2).

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have satisfied the requirements of Rule 4 in this case by looking to the rules for service of
process in Maryland (the state where the district court is located) or Texas (where Plaintiff
attempted to effectuate service). Maryland Rule 2-124(d) provides:
Service is made upon a corporation, incorporated association,
or joint stock company by serving its resident agent, president,
secretary, or treasurer. If the corporation, incorporated
association, or joint stock company has no resident agent or if a
good faith attempt to serve the resident agent, president,
secretary, or treasurer has failed, service may be made by serving
the manager, any director, vice president, assistant secretary,
assistant treasurer, or other person expressly or impliedly
authorized to receive service of process.
In addition, Texas permits service of process by (1) serving the Texas Secretary of State
(when suit is made against a foreign corporation), see Tex Bus. Orgs Code § 9.011(b)(6); (2)
serving the president, vice-president, or registered agent of the corporation, see Tex Bus.
Orgs. Code §§ 5.201(a), (b), 5.225(1); or (3) serving a president or bank manager at any office
located in Texas, see Tex. Civ. Practice and Rem. Code § 17.028(b).
Here, Plaintiff attempted service on Bank of America by using the address “9700
Bissonnet Street, Suite 1500, Houston, Texas 77036.” Bank of America, however, denies
that it has (or ever did have) an office at that address; it further denies that that address was
ever used by a resident agent of Bank of America. 9 Moreover, the address supplied by
Plaintiff does not match the address for Bank of America’s resident agent on file with the

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In support of its position, Bank of America submits the Affidavit of Matthew R. Stahlhut (ECF No. 11-2), assistant
vice-president and operations team manager, who states that “Bank of America, N.A. has not maintained office
space of accepted service of process at 9700 Bissonnet Street, Suite 1500, Houston, Texas 77036.” Bank of
America also submits a print-out of a “Statement of Change of Address of Registered Agent,” dated April 19, 2010,
from the Office of the Secretary of State of Texas, which identifies the address of Bank of America’s registered
agent, CT Corporation System, as “350 N. St. Paul St., Suite 2900, Dallas, TX 75201-4234.” See ECF No. 11-3.

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Maryland State Department of Assessments and Taxation10 or the Texas Secretary of State.11
See Def.’s Mem. Supp. Mot. Set Aside, ECF No. 11-1, at 6.
Plaintiff has not disputed the appropriateness of the address provided for service of
process; instead, Plaintiff alleges that Bank of America had notice of the action because of
his correspondence with Bank of America regarding his loan modification and payments.
See ECF No. 18. Although Plaintiff refers to other correspondence with Bank of America,
Plaintiff only attaches a certified mail receipt addressed to “BAC Home Loans, P.O. Box
660833, Dallas TX 75266-0833.” See id.

Thus, Plaintiff has baldly asserted that Bank of

America had actual notice, but he has not provided any proof of the content of those
communications. See O'Meara v. Waters, 464 F. Supp. 2d 474, 476 (D. Md. 2006) (noting that,
when service of process is contested, the burden of proof is on the plaintiff). Importantly,
there is no indication that these communications signaled to Bank of America that some
action in response was necessary, as would have been clear had the summons been properly
served. See Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984)
(holding that the “plain requirements for the means of effecting service of process may not
be ignored” where the defendant is reasonably confused about the necessity to respond).
B. Discretionary Considerations
Even though this Court finds that Plaintiff’s failure to serve Bank of America is
sufficient to set aside the default, this Court notes that the circumstances of this particular
case also favor the Court’s conclusion. When addressing a Rule 55(c) motion to set aside a
default, the following factors are relevant:
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351 Camden Street, Baltimore, Maryland 21201.
350 N. St. Paul Street, Suite 2900, Dallas, Texas 7201-4234.

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[1] whether the moving party has a meritorious defense, [2]
whether it acts with reasonable promptness, [3] the personal
responsibility of the defaulting party, [4] the prejudice to the
party, [5] whether there is a history of dilatory action, and [6]
the availability of sanctions less drastic.

Payne ex rel. Estate of Calzada v. Brake, 439 F.3d 198, 204-05 (4th Cir. 2006).
Here, each of those factors favor setting aside the default. First, Bank of America has
raised a meritorious defense; specifically, it argues that Plaintiff has failed to state a claim for
which relief may be granted under Iqbal and Twombly. 12 See Washington v. Equifax Credit
Bureau, No. 1:08-cv-132, 2008 WL 2691708, at *3 (N.D. Ind. July 2, 2008) (stating that
“plausible meritorious defenses” were raised where defendant argued, inter alia, that plaintiff
had failed to state a claim for which relief could be granted). Second, Bank of America acted
with reasonable promptness. The Motion to Set Aside was filed within ten days of April 16,
2013, the date it alleges it became aware of the entry of default. Third, the personal
responsibility of Bank of America was minimal; Plaintiff used an improper address to
effectuate service of process, and Plaintiff has not demonstrated that Bank of America had
actual knowledge of the suit before default was entered. Fourth, Bank of America has been
prejudiced by the denial of an opportunity to defend, and Plaintiff has not demonstrated any
prejudice to his interests. Finally, there is no history of dilatory action on Bank of America’s
part in this action; it acted swiftly after it alleges it became aware of the suit, and its filings
have been timely. Accordingly, this Court will set aside the default and allow Bank of
America to answer the Complaint or take other appropriate action.

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Of course, insufficient service of process is a defense that the Federal Rules of Civil Procedure expressly
recognize as a defense, see Rule 12(b)(5).

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II.

Bank of America’s Motion to Dismiss.
A few weeks after filing its Motion to Set Aside the Default, Bank of America also

filed a Motion to Dismiss (ECF No. 12).13 Bank of America’s arguments closely parallel
those it raised in its Motion to Set Aside the Default—namely, the failure to provide
adequate service of process, and the failure to state a claim for which relief may be granted.
A. Failure to Effectuate Service of Process.
As discussed supra Part I.A, Plaintiff failed to provide adequate service of process to
Bank of America. Accordingly, dismissal is proper under Rule 12(b)(5).
B. Failure to State a Claim for Which Relief May Be Granted.
Although Plaintiff’s failure to effectuate service of process provides sufficient
grounds for dismissal of this action, the Court also finds that Plaintiff fails to state claims for
which relief may be granted pursuant to Rule 12(b)(6) and the plausibility standard laid out in
Iqbal and Twombly. With respect to Plaintiff’s breach of contract claim, Plaintiff has failed to
allege facts supporting all of the required elements. Under Maryland law, Plaintiff must
allege that Bank of America owed Plaintiff a contractual duty and that Defendant breached
that duty. See Robinson v. GEO Licensing Co., LLC, 173 F. Supp. 2d 419, 423 (D. Md. 2001).
Here, Plaintiff has failed to plausibly allege a breach of duty by Bank of America. With
respect to the $12,700 charge, Plaintiff’s claim arises out of an alleged failure to disclose.
However, the settlement statement included in Plaintiff’s Exhibit 1 (ECF No. 1-1)
contradicts that notion, as it clearly discloses the charge. See Pl.’s Compl. Ex 1, ECF No. 11, at 3. Thus, there is no plausible claim. Similarly, the Settlement Statement does not
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Bank of America acknowledged that the Court had not yet granted its Motion to Set Aside, but nevertheless filed
its Motion to Dismiss “in an abundance of caution.” See Def.’s Mem. Supp. Mot. Dismiss, ECF No. 12-1, at 1 n.2.

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provide any factual support for the notion that Bank of America was contractually obligated
to pay Verizon and Worldcom Wireless.

Accordingly, Plaintiff’s breach of contract

allegations fail to state a plausible claim for which relief may be granted.
In addition, Plaintiff has failed to state a claim for unjust enrichment. 14 Under
Maryland law, the elements of unjust enrichment are “(1) the plaintiff confers a benefit upon
the defendant; (2) the defendant knows or appreciates the benefit; and (3) the defendant’s
acceptance or retention of the benefit under the circumstances is such that it would be
inequitable to allow the defendant to retain the benefit without the paying of value in
return.” Jackson v. 2109 Brandywine, LLC, 180 Md. App. 535, 574, 952 A.2d 304, 327 (Md. Ct.
Sp. App. 2008). Plaintiff’s sole allegation with respect to the claim is that “Bank of America
has been dragging out a lone [sic] modification for over two years for double the market
entrust [sic] rate.” Pl.’s Compl., at 5. Plaintiff has not pled any plausible facts giving rise to
inequity that support this bare, conclusory statement.15 Thus, Plaintiff’s Complaint fails to
state a plausible claim for unjust enrichment.
CONCLUSION
For the reasons stated above, Defendant Bank of America, N.A.’s Motion to Set
Aside Entry of Default and for Leave to Respond to the Complaint (ECF No. 11) is
GRANTED. In addition, Defendant Bank of America, N.A.’s Motion to Dismiss (ECF No.
12) is GRANTED and this case is DISMISSED WITHOUT PREJUDICE.
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In its Memorandum in Support of its Motion to Dismiss, Bank of America presented several arguments to address
a claim under the Home Affordable Modification Program. See Mem. Supp. Mot. Dismiss, at 12. As there is
nothing in the Complaint to suggest that Plaintiff is making this type of claim, the Court will not address it.
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Moreover, unjust enrichment would be inappropriate if the relationship was governed by a contract, which
Plaintiff appears to believe exists. See FLF, Inc. v. World Publ’ns, Inc., 999 F. Supp. 640, 642 (D. Md. 1988) (“It is
settled law in Maryland, and elsewhere, that a claim for unjust enrichment may not be brought where the subject
matter of the claim is covered by an express contract between the parties.”).

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A separate Order follows.
Dated:

October 15, 2013

/s/______________________________
Richard D. Bennett
United States District Judge

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