Beatty v. Ocwen Loan Servicing LLC

Filing 23

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDER. Accordingly, the motion to vacate entry of default (Docket No. 17 ) is ALLOWED and the motion to dismiss for insufficient service (Docket No. 19 ) is DENIED WITHOUT PREJUDICE. The period for service of process of defendant is extended until Friday, August 17, 2018.So ordered.(Franklin, Yvonne)

United States District Court
District of Massachusetts

JOHN BEATTY,
Plaintiff,
v.
OCWEN LOAN SERVICING,
Defendant.

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Civil Action No.
17-12539-NMG

ORDER
GORTON, J.
This case arises from a dispute over a mortgage
foreclosure.

Plaintiff John Beatty (“Beatty” or “plaintiff”)

filed a complaint in Massachusetts Superior Court in November,
2017 against defendant Ocwen Loan Servicing (“Ocwen” or
“defendant”) which timely removed the action to this Court.

On

March 20, 2018, this Court entered a default against Ocwen.
Ocwen contends that it was not properly served with process and
has moved to vacate the entry of default (Docket No. 17) and to
dismiss for insufficient service of process under Fed. R. Civ.
P. 12(b)(5) (Docket No. 19).
When a defendant challenges the sufficiency of service of
process, the plaintiff bears “the burden of proving proper
service”. Lopez v. Municipality of Dorado, 979 F.2d 885, 887
(1st Cir. 1992).

Under the federal rules of civil procedure, if

a defendant is not served within 90 days after the complaint is

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filed, the court must “dismiss the action without prejudice
against that defendant or order that service be made within a
specified time”. Fed. R. Civ. P. 4(m).

If the plaintiff shows

good cause for failure, the court “must extend the time for
service for an appropriate period”. Id.
Plaintiff, who appears pro se, has not asserted good cause
for his failure to serve process in a timely manner nor
expressly asked for a good-cause extension.

Defendant has not,

however, shown that it would suffer prejudice if the time for
service were extended. See Morales v. Spencer, No. 13-12423,
2014 WL 2003039, *2 (D. Mass. May 14, 2014) (denying a motion to
dismiss under Fed. R. Civ. P. 12(b)(5) and granting plaintiff a
30-day extension in which to serve defendants, noting that it is
the practice of this Court to “grant some latitude to pro se
plaintiffs who make procedural missteps”).
Accordingly, the motion to vacate entry of default (Docket
No. 17) is ALLOWED and the motion to dismiss for insufficient
service (Docket No. 19) is DENIED WITHOUT PREJUDICE.

The period

for service of process of defendant is extended until Friday,
August 17, 2018.
So ordered.
/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated July 16, 2018

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