Combs v. Shapiro & Burson LLP et al

Filing 23

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 3/14/2016. (kns, Deputy Clerk)(c/m 3/15/16)

FilED

U.S. DISTRICT

COURT

DISTRICT OF MARYLAND

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division

lUlb MAR III P 3: 211
ClERWS O!'"FICC
AT GREENBELT

*
CRYSTAL A. COMBS,

By

f),,)!iT Y

*
Plaintiff,

*
Case No.: G./Il-IS-8.t6

\'.

*
SHAPIRO & BURSON LLP, et lI/.,

*
Defendants.

*
*

*

*

*

*

*

*

*

*

*

*

*

*

MEMORANI>UM OI'INION
In this action. pro sc Plaintiff Crystal A. Combs allegcs that Defendants Shapiro &
Burson LLP ("Shapiro"). Speeializcd Loan Servicing LLC. Branch Banking & Trust ("BB&T"').
Morgan Stanley Capitailioidings

LLC ("Morgan Stanlcy"'). and Kristinc D. Brown. individually

and as substitute trustee (collectively. "Delendants") violated various ledcrallaws in eonncction
with the state-court fi.)rcclosure proceedings respecting certain real propcrty owncd by Plaintiff.
ECF NO.1. Defendants have moved to dismiss Plaintiffs Complaint pursuant to Rule .t(m) of
the Fcderal Rules of Civil Procedure. or. in the altcrnativc. Ii.Hdismissal pursuant to Rules
12(b)(2). (4). and (5). ECF NO.4. Plaintiff opposcs Delendants' Motion. and she has also liled
her own "Motionto

Rcmove thc Foreclosure Casc" from statc court to this Courl. ECF NO.8.

Upon the tiling of Plaintiffs Motion. William M. Savage. thc substitute trustec and plaintiffin
the foreclosure action ("Substitute Trustec"). appearcd specially to lilc a Motion to Rcmand the
foreclosure action to state eourl. which Plaintiff has opposcd. ECF Nos. 10& 12. No hearing is
necessary. See Loe. R. 105.6 (D. Md.). For thc 1i.)llowingrcasons. DetCndants' Motion to
Dismiss is granted. Plaintiffs Motion is denied. and thc Substitute Trustcc's Motion is grantcd.

I.

BACKGROUND
In this action, Plaintiff allcges that Defendants

action respecting

certain real property

engaged in li'aml in a state foreclosure

located at 9904 Doubletree

20774. See ECF NO.1 at ~~ 6.10-11.

The Il,reclosure

the Circuit Court for Prince George's

County. Maryland

NO.8 at ~ I; Burson.

el

action was initiated on.June'29.

al. v. Comhs. No. CAE10-20522

Although

the factual allegations

in the Complaint

challenge

Shapiro's

of her mortgage

assignment

Lane. Upper Marlboro.

("'Maryland

Circuit Court").

MD

2010 in

See ECF

(P.G. Cnty. Cir. Ct. .June 29. 2010).

are somewhat

murky. Plaintiff appears to

and deed of trust to BB&T. while. she alleges.

Morgan Stanley actually owned the loan. ECF NO.1 at ~ 44. According

to PlaintilI

confronted

dismiss the foreclosure

Defendants

with evidence of Ii'aud. they failed to voluntarily

action, and she was "forced to lile for bankruptcy:'/d.
bankruptcy

twice while the foreclosure

the foreclosure

Ill!'
of

proceedings.

by filing her Complaint
submit summonses

Ii-om the still-pending

foreclosure

proceedings-

in this COUI1on March 23. 2015. ECF NO.1. When Plaintiff Itliled to

for the Clerk to seal and sign. the Court issued an Order on April 2. 2015.

Plaintiff to provide a properly executed

summons

the Court. ECF NO.2. In that Order. the Court explained
in this case, she bore responsibility
also explained

Plaintiffliled

action was pending. see icl. at ~ 21. slowing resolution

Plaintiff initiated this action-separate

directing

at ~ 10. Apparently.

alier she

the procedure

that the person effecting

for each Defendant

to the Clerk of

that. because Plaintiff paid the liling Icc

for elTecting service of process on Defendants.

It!. The Court

that Plaintiff must follow to properly serve the Defendants.

service must notify the Clerk of the Court. through an affidavit.

service has been completed.

that service of process on corporations

and associations

noting
once

may be

made pursuant to Fed. R. Civ. P. 4(h). and that. it: in lieu of using a private process server.

2

Plaintiff chose to scrve Defendants
"restricted

delivery:'

by mail. the rcgistered

Finally. the Court "cautioned

or certilicd

mail must be sent

that failure to comply with Ithe Court's]

Order and etTect service of process within 120 days of initiating this lawsuit could result in the
dismissal

of the Complaint

without prejudice:'

On July 21. 2015. Plaintiff
Complaint

It!.

liled an "Aflidavit

At1irming Servicc of Court Summons

ECF NO.3. But that sen'ice omitted proper summonses.

to the Defendants."

appears that, as of that date. Plaintiff had not yet submitted

seeking dismissal

Indeed. it

to the Clerk of the

Lacking proper service. on August 3. 2015. Defendants

Court for seal and signature.
specially

any summonses

&

appeared

service. ECF NO.4.

of this action for failure to properly effectuate

After Defendants

tiled their Motion. on August 7. 2015. Plaintiff tiled a request for the Court to

issue summonses

as to each Defcndant.

summonses.
submitted

ECF NO.7. She provided
completed

summonses

no explanation

in accordance

See id. The Clerk issued summonses
Plaintiff then tiled a responsc

to which she attached thc neccssary

with the Court's

lor each Defendant

in opposition

to Defendants'

2015. Eel' No. 13. At that point. proofofservice
opposition

to Defendants'

regarding

complcted

why she had not sooner
Order issued four months prior.

on August 14.2015. ECF NO.9.
Motion to Dismiss on Septembcr

14.

had still not been shown. but Plaintiffargued

in

Motion:

The failure to properly serve Defendants was rcmcdicd by the Court reissuing the
Summons with the Clerk' s seal and Plaintiff has now properly served Defendants.
The mistake was inadvertent and obviously the Defendants received service. they
just complain that the summons[es]
were delective.
At this point. Plaintiff
believcs it is a moot point as the Court decided to issue new summons Ies 1 with
the seal.
Eel' No. 13 at ~ 1.
Defendants

tiled their Reply in support of their Motion to Dismiss on October

which they noted that the Court never extended

the period for PlaintifTto

3

effectuate

1.2015. in

service and

that PlaintifT made no argument respecting whcthcr she had good cause ti.lf the delay. ECF No.
14 at 2. That same day. Plaintiff filed an aftidavit indicating that Defendants had been served by
her mailing ofa summons and a copy of the Complaint to each Defendant via U.S. Postal
Service "as priority express mail." on September 10.2015. See ECr No. 15. The exhibits
attached to that aflidavit indicate. however. that none of those mailings were made via certilied
mail. restricted delivery. See Md. Rules 2-121 (a) (providing that service of process may be made
within the state of Maryland "by mailing to the person to be served a copy of the summons.
complaint, and all other papers tiled with it by certilied mail requesting: . Restricted Delivery-show to whom, date. address of delivery. "'). Then. on October 15.2015, PlaintifTfiled an
aflidavit of proof of service indicating that Brown was personally served by a private process
server on October 2. 2015. Ecr No. 18. And. tinally. on January II. 2016. an aflidavit of service
was filed by PlaintifT indicating that Morgan Stanley had received service on November 19.2015
through the Maryland Department of Assessments and Taxation.] ECF No. 22.
While these issues related to service of process were ongoing. Plainti ITIiled a "Motion to
Remove the Foreclosure Case" from state court to this Court on August 12.2015. more than tive
years after that suit was initiated in state court. ECr NO.8. In her Motion. PlaintilT indicated that
a "Notice ofRemovallwas]

properly tiled under Court Case CAEIO-20522 with the Circuit

Court for Prince George's County. Maryland" and that it was served on "Kristine D. Brown. the
Plaintiff and Substitute Trustee on tile." Id. at ~ 3. On August 17,2015. the Substitute Trustee
filed his Motion to Remand the foreclosure action to state court. Ecr No. 10. which Plaintiff
opposed on September 2. 2015. Ecr No. 12.
I See Md. Rules 2-124(0)
("Service may be made upon a corporation.
limited partnership.
limited liability
partnership. limited liability company. or other entity required by statute of this State to have a resident agent by
serving two copies of the summons. complaint. and all other papers filed with it. together with the requisite fec,
upon the State Department of Assessments and Taxation if(i) the entity has no resident agent; (ii) the resident agent

is dead or is no longer at the address for service of process maintained with the State Department of Asscssmcnts
and Taxation; or (iii) two good faith attempts on separate days to serve the resident agent have failed.").

4

II.

MOTION

FOR REMOVAL

AND MOTION

TO REMAND

Although not chronological. the Court will tirst addrcss Plaintiffs "Motion to Remove"
the foreclosure action and the Substitute Trustee's Motion to Remand. PlaintilTargues that
removal of the state court foreclosure action is proper on the basis of diversity jurisdiction. ECl'
NO.8 at ~~ 4-7. She also contends. however. that she tiled certain federal counterclaims in the
foreclosure action which "overlap" with the claims she raised in the Complaint tiled in this
Id at

Court, and that 'judicial economy would be best served by combining these cases

~i'i

9-10. The Substitute Trustee argues. however. that removal was procedurally improper. and that.
in any event, removal cannot be based on federal counterclaims. See ECl' No. 10.1.
In order to remove a state court action to lederal cout1. a defendant must "liIe in the
district court of the United States tor the district and division within which [the state court]
action is pending a notice of removal ...

containing a short and plain statement of the grounds

for removal. together with a copy of all process. pleadings. and orders served upon such
defendant or defendants in such action'" 28 U.S.c. ~ 1446(a). The notice of removal must be
filed within 30 days of the delendant's receipt ofservicc of the initial pleading. or within 30 days
of receipt of an amended pleading "from which it may tirst be ascct1ained that the case is one
which is or has become removable'" ~~ 1446(b)(I). (3). Removal may only be made with respect
to cases "of which the district courts of the United States have original jurisdiction'" 28 U.S.c. ~
1441(a). Removal on the basis of diversity jurisdiction must occur within one year of the
commencement of the action in state cout1. "unless the district court tinds that the plaintiff has
acted in bad faith in order to prevent a defendant !i'om removing the action'" ~ 1446(c)( I).
"A motion to remand the case on the basis of any delect other than lack of subject matter
jurisdiction must be made within 30 days aner the tiling of the notice of removal

5

28 U.S.c.

S

1447(c). "On a motion to remand. thc court must 'strictly construe the removal statute and

resolve all doubts in lavor of remanding the case to state court: indicative of the reluctance of
federal courts "to interfere with matters properly be!()re a Slate court:" Ali

I'.

GianI FII",I

LLC/Stop & Shop Supermarket Co., LLe. 595 F. Supp. 2d 618, 620 (D. Md. 2009) (quoting
Richardson )'. Phillip Morris Inc.. 950 F.Supp. 700, 701-02 (D. Md. 1997)). It is well-settled that
the removing party "bears the burden of proving that removal was proper:' Marchese \',
JPMorgan Chase Bank, N.A .. 917 F. Supp. 2d 452, 459 (D, Md. 2013) (citations omitted),
Here, Plaintiffs "'Motion to Remove" the state foreclosure action is procedurally
improper. Rather than tiling a notice of removal with this Court. as is required by 28 U.S,c.

*

1446(a), Plaintiff tiled the notice of removal in the state foreclosure action. See Burson, ellli.

1'.

Combs, No. CAE10-20522 (P,G. Cnty. Cir. Ct. August 6, 2010), It appears that Plaintiffhoped to
remove the foreclosure action to this Court and consolidate that action with the Complaint she
originally tiled in this action. See ECF No, 8 at

'i~

9-10. But because she failed to 1()lIowthe

proper procedures to do so, her "Motion to Remove" must be denied,
It appears, however. that, upon Plaintiffs tiling of the notice of removal in the state
foreclosure action. the Maryland Circuit Court disposed of the case as having been properly
removed to federal court. See BursoJ1.el 01. ". Comhs. No, CAE10-20522 (P.G, Cnty, Cir. Ct.
August 6, 20 I0), The Court must accordingly remand the foreclosure action to state court. Even
if Plaintiffs notice of removal was procedurally proper. removal would not be permitted in this
ease where it occurred over live years atter the l()reclosure action was initiated. If Plaintiff
wanted to remove that action. she was required to do so within 30 days of her receipt of service
of the initial pleading, or within 30 days of receipt of an amended pleading thatlirst made
removal possible.

** 1446(b)( I). (3). In her "Motion to Remove:'
6

Plaintiff argues that removal is

proper on the basis of diversity jurisdiction, see ECF No, 8 at

','i 4-7, but she did not contend

that any non-diverse party was recently dismissed from the loreclosure action such that removal
only recently became available to her. And. in any event. rcmoval on the basis of diversity
jurisdiction cannot occur more than one year

t1'()Jll

the date of the commencement of the action in

state court. unless there is a finding of "had faith" that prevented her from earlier removing the
action,

S

1446(c)(1), Plaintiff has not argued that is the case here,2 Finally. although she also

appears to suggest that removal is proper as an exercise of lederal question jurisdiction because
she has filed federal counterclaims in the foreclosure action. see ECF No, 8 at

'i~
9-10.

it is well-

established that "[a] federally-based counterclaim by an original defendant is not eligible to serve
as the basis for removal on federal question grounds'" lVillsladl \', Reyes. I 13 F, Supp. 3d 804.
806 (D. Md. 2015). Thus. because removal of the state Il)J'eciosure action was improper. the
Substitute Trustee's Motion to Remand must be granted,

III.

MOTION TO DISMISS
Although an order remanding a case to state court would ordinarily end the Court's

inquiry, because there was an independent action initiated by the filing of Plaintiffs Complaint.
the Court must also address Defendants' Motion to Dismiss the action originally tiled in this
Court. Rule 4(m) requires a plaintiff to serve a defendant within 120 days of the tiling of a
complaint. If a plaintitr fails to abide by this requirement. Rule 4(m) provides that. upon a
motion by the defendant. or on its own alier providing the plaintiff with notice. the Court "must
dismiss the action without prejudice against the defendant or order that service be made within a
specified time. But if the plaintifTshows good cause for the failure. the court must extend the

Although in her Motion. PlaintifTalleges that the parties involved in the foreclosure action engaged in "bad faith in
the prosecution orlhe foreclosure action:' that allegation \vas with respect to the alleged "active[] concealjmentj fon
the ownership of the debt obligation:" ECF NO.8 at ~ II. She has not argued that there has been any bad faith
attempt to avoid removal of the foreclosure action for the five years that it has been pending.

2

7

time for service for an appropriate period:' Fed. R. Civ. P. 4(m). As Rule 4(m) has been
interpreted in this Circuit. "[aJ plaintiff may escape dismissal for failure to timely servc process
only if she demonstrates 'good cause' for the delay" Marlinez \'. Uniled Slales. 578 F. App'x
192.193 (4th Cir. 2014) (quoting Fed. R. Civ. P. 4(m)). Thus. absent a showing of good cause.
the complaint must be dismissed; "[t]he Court has no discretion to salvage the action:'
Brailhwaile v. Johns Hopkins Ho.\jJ.. 160 F.R.D. 75. 77 (D. Md. 1995) (citation omitted): see
also Mendez \'. Elliol, 45 F.3d 75. 78 (4th Cir. 1995) ("Rule 4(m) requires that if the complaint is
not served within 120 days after it is filed. the complaint must be dismissed absent a showing of
good cause."). Although dismissal pursuant to Rule 4(m) is without prejudice. that dismissal
"does not ... give the [plaintitn a right to refile without the consequence of time defenses. such
as the statute of limitations:' Mendez. 45 F.3d at 78.3
Good cause may be established in a number of ways. "Good cause might be found. for
instance, where a defendant is evading service. coun staff misdirected a pro se plaintiff as to the
appropriate procedure. or a plaintifTwas unaware of the detect in service until after thc deadline
had passed." Tenenhaum

1'.

PNe Bank Nal. Ass 'n. No. CIV. A. DKC 10-2215.2011 WL

2038550, at *4 (D. Md. May 24. 20 II) (citing Hotfinon \'. Ballimore Police Dep '1.379
F.Supp.2d 778. 786 (D. Md. 2005); 4B Charles Alan Wright & Arthur Miller. Federall'raclice
and Procedure

S

I 137 (3rd ed. 20 10 supp.)). "The common thread amongst all of these examples

is that the interference of some outside factor prevented the otherwise-diligent plaintifT from

3 The Court recognizes that there is some debate within this district regarding \\'hether 1\I('mlt':: remains good law.
See. e.g., Malihu Media. LLC. \'. Doe. No. eIV.A. ELH- t4-1229. 2014 WL 5843363. at *3 (D. Md. Nov. 10.2014)
(citing cases and explaining that subsequent decisions have called Aff!f1de:: into doubt). Nevertheless. even if the
Court had discretion to grant an extension oftimc for service of process absent good cause... the Court would still
need to have some reasoned basis to exercise its discretion and excuse the untimely service: the Court Illust give
some import to the rule." H'dlillan 1'. !Jaltilllore Police Del' '/.379 F. Supp. 2d 778. 786 (D. Md. 2005): see "Iso
Tenenbaum. 2011 WL 2038550. at *6 ("The mere fact that a court ('all extcnd the period [for service beyond the
120-day limit) does not mean it ,\11OUId." (emphasis in original), Here. there would be no "rcasoned basis" f()f thc
Court to excuse Plaintiffs untimely service.

complying with the rule:' Id. (citing Bums & Russell Co. oj'IJaltilllore \'. otdcastte. Ine.. 166 F.
Supp. 2d 432,439 n.9 (D. Md. 2001»). "[IJnadvertencc or ncglect of counsel:' however. will not
suffice to satisfy the standard of "good cause:' Brait/limite. 160 F.R.D. at 77.
Here, less than two wceks alier Plaintiffliled
explaining how I'laintiffmust

her Complain!. the Court issucd an Ordcr

proceed with serving Detendants. Dcspite notifying PlaintitTthat

she must provide properly executed summons lor each Defendant to the Clcrk lor signaturc and
seal, PlaintilTinstead. over three months later. "affirm[edj" that Dcfendants had be served.
notwithstanding that she had yet to tile any summonses with the Clerk. See ECF NO.3. To date.
it seems that the only Defcndants to havc bcen propcrly scrved were Brown and Morgan Stanley.
although in both cases, service was untimely. occurring nearly live or six months alier the
Court's order directing Plaintiff how she should proceed. See ECF Nos. 18 & 22. Plaintiff has
yet to provide any argument indicating that therc was "good causc" tor her failure to timcly serve
Defendants. Rather, in her response in opposition to Defcndants' Motion to Dismiss. shc argued
only that her failure to properly serve Detendants was a "moot point" because ..the Court decided
to issuc new summons with the seal:' ECF No. 13 at ~ 1. In light of the Court's clear instructions
to Plaintiff regarding how she must proceed with serving Defendants. Plaintitrs argumcnt that
her mistake was "inadvertent:'

without more. is insufficicnt to cstablish good cause to extcnd thc

deadline for service. Thus. this action must be dismisscd without prcjudice pursuant to Rule

the Court need not consider Defendants' alternative arguments tor dismissal pursuant to
Rules 12(b)(2). (4). and (5). which largely repeat their arguments respecting dismissal under Rule 4(m).

.• In light of this conclusion,

9

IV.

CONCLUSION
For the foregoing reasons, Plaintiffs Motion to Remove the Foreclosure Case, ECF No.

8, is DENIED, and the Substitute Trustee's Motion to Remand, ECF NO.1 0, is GRANTED.
Defendants' Motion to Dismiss, ECF NO.4, is GRANTED and this action is DISMISSED
without prejudice. A separate Order follows.

/C-$--

-fir-.

Dated: March

It{,

2016

OEORGEiHAZEL

United States District Judge

10