Starks v. Wells Fargo, NA et al

Filing 13

MEMORANDUM AND ORDER - Plaintiffs Motion to Alter or Amend (Filing No. 12 ) is granted. The Clerk of the court is directed to reopen this matter; Plaintiff must complete service of process on Defendants. The Clerk of the court shall send FOUR (4 ) summons forms and FOUR (4) USM-285 forms to Plaintiff together with a copy of this Memorandum and Order. Plaintiff is granted, on the courts own motion, an extension of time until November 6, 2012, to complete service of process; ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 11/6/2012: check for completion of service of summons.) Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party as directed )(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KEVIN ISAAC STARKS,
Plaintiff,
v.
WELLS FARGO, NA, WACHOVIA
MORTGAGE CORPORATION,
WORLD SAVINGS INC., and ERIC H.
LINDQUIST,
Defendants.

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CASE NO. 8:12CV6

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Motion to Alter or Amend. (Filing No.
12.) The court dismissed this matter on initial review because, liberally construing the
Complaint, “Plaintiff’s pleadings show that Defendants completed foreclosure proceedings
in Nebraska state court in 2008, and have already transferred Plaintiff’s former home at
least one time since.” (Filing No. 10.) The court noted that the Rooker-Feldman doctrine
prohibits lower federal courts from exercising appellate review of state court judgments.
Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923); District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462, 482 (1983). Thus, although Plaintiff set forth enough
facts to support diversity of citizenship jurisdiction, the court determined that it lacked
jurisdiction due to the presumed underlying state-court proceedings. (Filing No. 10.)
In his Motion, Plaintiff requests that the court reconsider its previous findings, and
reopen this matter, because “the foreclosure sale that took place was a non-judicial
remedy” and “[n]ever was there a final judgment ordered by any state court nor was there
any state action involved in the foreclosure process except notification to the records office
for recordings of transactions and legal documents.” (Filing No. 12 at CM/ECF p. 1.)

Plaintiff recognizes that his “pleadings didn’t specify which process was used in the
foreclosure of this property. It is now specified that it was a non-judicial process not a
judicial proceeding in the state court.” (Id. at CM/ECF p. 2.) In light of these facts, and
because the court dismissed this matter prior to service on Defendants without granting
Plaintiff the opportunity to amend, the court will reopen this matter and allow Plaintiff to
complete service of process. U.S. v. Metro. St. Louis Sewer Dist., 440 F. 3d 930, 933 (8th
Cir. 2006), (“A district court has broad discretion in determining whether to grant or deny
a motion to alter or amend judgment pursuant to Rule 59(e), and this court will not reverse
absent a clear abuse of discretion.”).
IT IS THEREFORE ORDERED that:
1.

Plaintiff’s Motion to Alter or Amend (Filing No. 12) is granted;

2.

The Clerk of the court is directed to reopen this matter;

3.

Plaintiff must complete service of process on Defendants;

4.

To obtain service of process on Defendants, Plaintiff must complete and
return the summons forms which the Clerk of the court will provide. The
Clerk of the court shall send FOUR (4) summons forms and FOUR (4)
USM-285 forms to Plaintiff together with a copy of this Memorandum and
Order. Plaintiff shall, as soon as possible, complete the forms and send the
completed forms back to the Clerk of the court. In the absence of the forms,
service of process cannot occur;

5.

Upon receipt of the completed forms, the Clerk of the court will sign the
summons forms, to be forwarded with a copy of the Complaint to the U.S.
Marshal for service of process. The Marshal shall serve the summons and
Complaint without payment of costs or fees. Service may be by certified mail
pursuant to Fed. R. Civ. P. 4 and Nebraska law in the discretion of the
Marshal. The Clerk of the court will copy the Complaint, and Plaintiff does
not need to do so;

6.

Fed. R. Civ. Pro. 4 requires service of a complaint on a defendant within 120
days of filing the complaint. However, because in this order Plaintiff is
informed for the first time of these requirements, Plaintiff is granted, on the
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court’s own motion, an extension of time until November 6, 2012, to
complete service of process;
7.

Plaintiff is hereby notified that failure to obtain service of process on a
defendant by November 6, 2012, may result in dismissal of this matter
without further notice as to such defendant. A defendant has twenty (20)
days after receipt of the summons to answer or otherwise respond to a
complaint;

8.

The Clerk of the Court is directed to set a pro se case management deadline
in this case with the following text: November 6, 2012: Check for completion
of service of summons; and

9.

The parties are bound by the Federal Rules of Civil Procedure and by the
Local Rules of this court. Plaintiff shall keep the court informed of his current
address at all times while this case is pending. Failure to do so may result
in dismissal.

DATED this 10th day of September, 2012.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

* This opinion may contain hyperlinks to other documents or Web sites. The U.S.
District Court for the District of Nebraska does not endorse, recommend, approve, or
guarantee any third parties or the services or products they provide on their Web sites.
Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink.
Thus, the fact that a hyperlink ceases to work or directs the user to some other site does
not affect the opinion of the court.
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