Rowe v. Seterus, Inc et al

Filing 44

Judge F. Dennis Saylor, IV: ORDER entered. Defendants are ordered to report in writing by 12/22/17 whether counsel may execute a waiver of service on their behalf as to the claim of Linda Rowe. If they do not agree to waive service, plaintiff Linda Rowe shall have until 1/6/18 to effect service on defendants, and defendants may be liable for expenses of service and other fees pursuant to Fed. R. Civ. P. 4(d)(2).(Halley, Taylor)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
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LINDA A. ROWE and CAROL B. ROWE,
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Plaintiffs,
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v.
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SETERUS, INC. and FEDERAL NATIONAL )
MORTGAGE ASSOCIATION,
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Defendants.
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__________________________________________)

Civil Action No.
16-11849-FDS

ORDER CONCERNING SERVICE OF PROCESS
SAYLOR, J.
Linda and Carol Rowe filed this action on September 9, 2016, alleging violations of the
Fair Debt Collection Practices Act by defendants Seterus, Inc., Mark Harmon, and Federal
National Mortgage Association (“Fannie Mae”). Carol Rowe sued both individually and in her
capacity as executrix for the estate of Arthur Rowe. On October 26, 2016, this Court issued an
order instructing plaintiffs to pay their filing fees or file renewed motions to proceed in forma
pauperis. The Court also noted that the estate of Arthur Rowe could not proceed either pro se or
in forma pauperis.
On January 3, 2017, the Court dismissed the claims of both Linda Rowe and Carol Rowe
in her capacity as executrix without prejudice for failure to comply with the October 26, 2016
order. The Court also issued summonses to Carol Rowe, in her individual capacity, for her to
serve on defendants in accordance with Fed. R. Civ. P. 4(m).
On January 27, 2017, Linda Rowe filed a motion for leave to proceed in forma pauperis.
On February 15, 2017, Carol Rowe returned an executed summons that had been served

on the office of Robert Mendillo, counsel for defendant Harmon. Nine days later, on February
24, 2017, she also returned an executed waiver of service signed by attorney Richard Demerle
from defendants Seterus and Fannie Mae dated December 7, 2016. Although the waiver was
executed before the January 3, 2017 order, the Court sees no reason why the executed waiver of
service was not effective. 1
On March 6, 2017, this Court issued an order construing Linda Rowe’s January 27, 2017
motion for leave to proceed in forma pauperis in part as a motion for reconsideration of its
earlier order dismissing her from the action. The Court granted both motions and reinstated
Linda Rowe’s claims. It also issued summonses for her to serve on defendants in accordance
with Fed. R. Civ. P. 4(m).
The following month, on April 18, 2017, the Court dismissed defendant Harmon from the
case, noting that the complaint contained “no allegation that [he] did anything unlawful or
improper.” Despite that, Linda Rowe served a summons and copy of the complaint on Harmon
on April 25, 2017. The Court dismissed Harmon from the case a second time on June 19, 2017.
In late April 2017, Linda Rowe attempted service on defendants Seterus and Fannie Mae.
However, the summonses were returned unexecuted.
Linda Rowe then attempted to have the U.S. Marshal Service complete service on Seterus
and Fannie Mae by serving attorney Demerle on May 24, 2017. The return of service, filed June
5, 2017, states as follows in the “remarks” section: “Attorney Demerle not authorized to accept
service on behalf of DEF. Contact Atty Demerle for alternate service instructions (Washington,

1

It appears that defendants construed the Court’s January 3, 2017 order as requiring Carol Rowe to issue
new summonses. However, nothing in the Federal Rules of Civil Procedure suggests that a waiver of service
previously executed by an authorized agent becomes ineffective if, before the waiver is filed with the Court, new
summonses are issued for a plaintiff to serve.

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DC address).”
Because she still had not completed service, Linda Rowe filed a motion on June 23, 2017,
stating “[I] would like to know how I could get [the] summons[es] served from the court.” Both
Linda and Carol Rowe then moved for the Court to appoint counsel for them on July 5, 2017.
The Court denied their motion for an appointed counsel that same day.
On October 5, 2017, the Court issued an order construing the June 23 motion as a request
for additional time to complete service. The order specified that the summonses “shall be served
by Monday, November 6, 2017.” The U.S. Marshal Service then attempted service on attorney
Demerle again on November 14, 2017. The return of service, filed on November 16, 2017,
indicates that it was served on Julie Rizzo, the office manager of attorney Demerle’s firm.
Plaintiff Linda Rowe has now been unable to complete service on defendants Seterus and
Fannie Mae for nearly one year. Under Rule 4 of the Federal Rules of Civil Procedure, a
defendant located in the United States who fails to waive service, despite being notified of the
action and asked by a plaintiff to waive service, will be required to bear the cost of such service
unless good cause is shown. Fed. R. Civ. P. 4(d)(2). It is uncertain why attorney Demerle was
authorized to execute the waiver of service for defendants Seterus and Fannie Mae with respect
to Carol Rowe, but not Linda Rowe. At the very least, defendants’ positions appear to have been
inconsistent.
Accordingly, defendants are ORDERED to report to the Court in writing on or before
December 22, 2017, whether they are willing to have their counsel execute a waiver of service as
to the claim of Linda Rowe. If they do not agree to waive service, plaintiff Linda Rowe shall
have until January 6, 2018, to effect service on defendants, and defendants may be liable for
expenses of service and other fees pursuant to Rule 4(d)(2).

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So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor, IV
United States District Judge

Dated: December 8, 2017

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