McCaster v. Green Tree Servicing et al

Filing 35

ORDER granting 25 Motion to Dismiss; dismissing defendant Morris & Associates. Signed by District Judge Michael P. Mills on 2/9/16. (tab)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
KENNEY McCASTER

PLAINTIFF

v.

CIVIL ACTION No. 3:13-cv-0001

GREEN TREE SERVICING;
MORRIS & ASSOCIATES, ATTORNEYS
AT LAW, LLC; CHALLENGE FINANCIAL
INVESTORS CORP.; MORTGAGE
ELECTRONIC REGISTRATION SYSTEM,
MERS, AND JOHN DOES 1-20

DEFENDANTS

ORDER

Before this Court is the Defendant’s Motion to Dismiss the Plaintiff’s Complaint against

it as an individual defendant due to inadequate service of process, as listed in Federal Rule of
Civil Procedure 12(b)(5). In short, the Defendant has shown the Plaintiff failed to properly serve
a summons and copy of the complaint on this Defendant within the applicable time limit.
The Plaintiff filed his complaint pro se on Jan. 2, 2013. [1]. He alleged violations of
numerous federal laws and asked the Court to enjoin the collective Defendants from foreclosing
upon his real property, as well as any other damages to which he might be entitled. Id. On May
22, 2013, pursuant to Fed. R. Civ. P. 4(b), the Plaintiff presented the Clerk with a Summons to
be issued and served upon the various Defendants, as required by Fed. R. Civ. P. 4(c). [5]. As the
Plaintiff was proceeding in forma pauperis, service on the Defendants was attempted by the U.S.
Marshals, pursuant to Rule 4(c)(3) and 28 U.S.C. § 1915. [4]; Fed. R. Civ. P. 4(c)(3); 28 U.S.C.
§ 1915.

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Before any attempt was made to serve the May 22 summons, the Defendant filed its
Motion to Dismiss under Fed. R. Civ. P. 12(b)(5) [9]. In this motion, the Defendant asked the
Court to dismiss it as a party without prejudice, as the Plaintiff had failed to serve it with a
summons and copy of the complaint within the 120 day time limit proscribed by Fed. R. Civ. P.
4(m). Id. Despite two separate attempts by the Marshals, this Defendant has yet to receive a
properly executed summons with a copy of the complaint attached. [26:2]. It is contended this
occurred because the Plaintiff supplied the Marshals with the wrong address for the Defendant.
Id. Thus, despite being less than a month before trial and having submitted numerous motions to
this Court with its address listed, this Defendant still has not been properly served.
The Plaintiff filed a voluntary Chapter 13 petition for Bankruptcy relief in the Western
District of Tennessee on Apr. 30, 2013, and a stay in these proceedings was entered. See, [13].
The automatic stay was lifted by the Bankruptcy Court in June 2015, and the stay in these
proceedings was removed on July 1, 2015. [23]. This Court then entered an order denying the
Defendant’s original Motion to Dismiss with leave to refile. [24]. Finally, after the Defendant
had refiled its Motion to Dismiss, the Magistrate entered an order directing the Plaintiff to
effectuate service upon all defendants who had not been properly served before Sept. 1, 2015.
[27] That second Motion to Dismiss is the subject of this order. [25].
Rule 4 proscribes the method for service of process. Fed. R. Civ. P. 4. Rule 4(m) provides
that, if service of the summons is not achieved upon the defendant within ninety (90) days, the
defendant may move to dismiss the action against it without prejudice. Id. at 4(m). Upon such a
motion being filed, and provided the defendant has not in fact been served, the Court must
dismiss the action against the defendant, or, if the plaintiff can show good cause for the delay,
the Court must extend the time limit for an “appropriate period.” Id. Further, when service is
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challenged as inadequate, the plaintiff bears the burden of proving service was proper. Sys. Signs
Supplies v. U.S. Dep’t of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990).
While it is true that pro se litigants proceeding in forma pauperis are subject to
“[s]pecial” rules in terms of serving the defendant with process, Lindsey v. U.S. R.R. Retirement
Bd., 101 F.3d 444, 446 (5th Cir. 1987), “[p]ro se status does not excuse a litigant’s failure to
effect service.” Dupre v. Touro Infirmary, 235 F.3d 1340 (5th Cir. 2000) (per curium). The facts
presented in this case are similar to those present in Rochon v. Dawson. 838 F.2d 1107 (5th Cir.
1987). There, a pro se plaintiff proceeding in forma pauperis filed a complaint against a Dr.
Dawson and listed American Legion Hospital as the address where Dawson could be served.
Id.at 1108. However, no receipt of process was ever received by the Marshals. Id. Despite the
District Court’s open acknowledgment on the record to Rochon that Dawson had not been
served, Rochon took no action, and the case against Dawson was dismissed. Id. 1109.
The Court in Rochon held that, while a pro se plaintiff proceeding in forma pauperis “is
entitled to rely upon service by the U.S. Marshals and should not be penalized for failure of the
Marshal's Service to properly effect service of process, when such failure” is due to no fault of
their own, a pro se plaintiff cannot “remain silent and [fail to take any steps toward]
effectuat[ing] such service.” Id. at 1110. Fault and unreasonable delay are inexcusable, and “[a]t
a minimum, a plaintiff should request service upon the appropriate defendant and attempt to
remedy any apparent service defects of which a plaintiff has knowledge.” Id. As Rochon was
aware that the Marshals had been unable to properly serve Dawson and made no attempt to
correct this defect of service, the Court affirmed the dismissal. Id.
The Plaintiff, while able to rely on the Marshals to serve process in light of his in forma
pauperis status, cannot turn a blind eye to defects in service of process. Clearly, the Plaintiff was
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aware that the Defendant had not been served; he requested that service be attempted a second
time after learning that the first summons had been returned unexecuted. [19]. The Marshals
cannot be held responsible for the Plaintiff providing them with the incorrect address, and the
Plaintiff’s failure to correct this defect, despite being given multiple chances by the Court and the
Defendant’s address being listed on various court documents, constitutes the exact type of fault
described in Rochon. Given the fact that the Plaintiff was aware of the issue regarding service of
process and the Court’s allowance of an extended period of time to correct the flaw, the
Plaintiff’s failure to properly serve process upon the Defendant is inexcusable.
In light of the foregoing, it is hereby
ORDERED that, pursuant to the Defendant’s renewed motion, the Plaintiff’s case against
Defendant Morris & Associates is dismissed.
SO ORDERED this the 9th day of February, 2016.

/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI

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