Davis v. JP Morgan Chase Bank, National Association et al

Filing 12

ORDER dismissing remaining defendants without prejudice for failure to serve process. Signed by Honorable David C. Bramlette, III on 4/23/2014 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
GEDDIETH E. DAVIS
VS.

PLAINTIFF
CIVIL ACTION NO. 5:13-cv-41(DCB)(MTP)

JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION; LINDSEY McBRIDE;
FIRST MORTGAGE COMPANY; RENA
SCHMIDT, D/B/A CENTURY 21 RIVER
CITIES REALTY; RENA SCHMIDT;
NATIONWIDE TRUSTEE SERVICES, INC.;
STEPHANIE FONTENO; and JOHN AND
JANE DOES 1-99

DEFENDANTS

ORDER
This cause is before the Court pursuant to the Court’s March
25, 2014 Memorandum Opinion and Order which (1) dismissed defendant
JPMorgan Chase Bank, (2) ordered the plaintiff to show cause for
her failure to serve the remaining defendants with process, or any
other circumstances explaining her delay, within fourteen days from
March 25, 2014, and (3) warned the plaintiff that failure to
respond could result in dismissal of this action.
The plaintiff has failed to file any response to the Court’s
Order.

The Complaint in this matter was filed on February 11,

2013, in the Circuit Court of Adams County, Mississippi, and was
removed to this Court on March 21, 2013.
Mississippi Rule of Civil Procedure 4(h) provides:
If a service of the summons and complaint is not made
upon a defendant within 120 days after the filing of the
complaint and the party on whose behalf such service was
required cannot show good cause why such service was not
made within that period, the action shall be dismissed as

to that defendant without prejudice upon the court’s own
initiative with notice to such party or upon motion.
Miss.R.Civ.P. 4(h)(emphasis added).
Federal Rule of Civil Procedure 4(m) provides:
If service of the summons and complaint is not made upon
a defendant within 120 days after the filing of the
complaint, the court, upon motion or on its own
initiative after notice to the plaintiff, shall dismiss
the action without prejudice as to that defendant or
direct that service be effected within a specified time;
provided that if the plaintiff shows good cause for the
failure, the court shall extend the time for service for
an appropriate period. ....
Fed.R.Civ.P. 4(m)(emphasis added).
Since the plaintiff’s 120 days to serve process had not
expired before removal to federal court, Federal Rule 4(m) applies.
See Robinson v. Roxy Investments, L.P., 2008 WL 3165834, at *1
(S.D. Miss. Aug. 1, 2008)(citing Hanna v. Plummer, 380 U.S. 460,
473-74

(1965),

and

Fed.R.Civ.P.

81

(providing

that

“[t]hese

[federal] rules apply to civil actions removed to the United States
District Courts....”)).
The plaintiff has not responded to the Court’s Order and has
not shown “good cause.”

In fact, the plaintiff has not filed any

pleadings in this action since its removal from state court to
federal court on March 21, 2013.

On May 28, 2013, the plaintiff’s

counsel participated in a telephonic status conference during which
Magistrate Judge Parker inquired about the status of service of
process.
By the plaintiff’s silence, the Court concludes that she does
2

not wish to prosecute her claims against the remaining defendants,
and, in accordance with this Court’s March 25, 2014 Order, finds
that

the

remaining

defendants

should

be

dismissed

without

prejudice.
Accordingly,
IT IS HEREBY ORDERED that defendants Lindsey McBride; First
Mortgage Company; Rena Schmidt, d/b/a Century 21 River Cities
Realty;

Rena

Schmidt;

Nationwide

Trustee

Services,

Inc.;

and

Stephanie Fonteno are dismissed from this action without prejudice.
A final judgment shall issue.
SO ORDERED, this the 23rd day of April, 2014.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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