GARNER v. SELECT PORTFOLIO SERVICING, INC. et al
Filing
6
OPINION. Signed by Judge Noel L. Hillman on 7/2/2018. (rtm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TRACY A. GARNER,
1:17-cv-06464-NLH-JS
Plaintiff,
OPINION
v.
SELECT PORTFOLIO SERVICING,
INC., et al.,
Defendants.
APPEARANCES:
TRACY A. GARNER
59 HADDOCK DRIVE
SEWELL, NJ 08080
Appearing pro se
RICHARD J. NALBANDIAN
ECKERT SEAMANS CHERIN & MELLOTT, LLC
50 SOUTH 16TH STREET, 22ND FLOOR
PHILADELPHIA, PA 19102
On behalf of Defendants
HILLMAN, District Judge
This matter concerns claims by Plaintiff, appearing pro se,
against several Defendants arising out of the state court
foreclosure and sale of Plaintiff’s home in June 2016. 1
Plaintiff claims that the purported mortgage note he signed is
actually a “copyright,” 2 and his signature on the copyright made
1
This Court has jurisdiction over Plaintiff’s federal claims
under 28 U.S.C. § 1331, and supplemental jurisdiction over
Plaintiff’s state law claims pursuant to 28 U.S.C. § 1367.
2
Plaintiff’s claim is non-sensical. A “copyright” is not a
thing, a piece of paper or tangible object. Rather, it is a
it a “copyright derivative.”
Plaintiff claims that this
constituted fraud and violated his due process rights because it
deprived him of his identity.
Plaintiff also disputes that he
was provided with a loan and challenges an assignment of the
loan and a loan modification.
Plaintiff contests the
Defendants’ right to institute the state court foreclosure
action against him, and Plaintiff also takes issue with the
conduct of the state court judge and court employees who handled
the foreclosure case.
Plaintiff additionally asserts claims
against the attorneys who were involved in his bankruptcy case.
Plaintiff filed his complaint on August 28, 2017, and on
December 14, 2017, three of the Defendants filed a motion to
dismiss Plaintiff’s complaint.
(Docket No. 4.)
They first
argue that Plaintiff’s claims must be dismissed for insufficient
service of process.
These Defendants further argue that
Plaintiff’s claims must be dismissed pursuant to the RookerFeldman doctrine, 3 the Colorado River abstention doctrine, 4 and
bundle of legal rights concerning a literary or artistic work.
3
The Rooker-Feldman doctrine, derived from the two Supreme Court
cases District of Columbia Court of Appeals v. Feldman, 460 U.S.
462 (1983) and Rooker v. Fidelity Trust Co., 263 U.S. 413
(1923), provides that lower federal courts lack subject matter
jurisdiction to engage in appellate review of state-court
determinations or to evaluate constitutional claims that are
inextricably intertwined with the state court’s decision in a
judicial proceeding.
4
The Supreme Court in Colorado River Water Conservation Dist. v.
2
the Anti-Injunction Act. 5
Defendants also argue that Plaintiff’s
claims fail to state cognizable claims under federal pleading
standards.
On January 2, 2018, Plaintiff filed a letter in response to
Defendants’ motion.
(Docket No. 5.)
In his letter, Plaintiff
requested an extension of time to respond to Defendants’ motion
because he did not receive the motion until December 23, 2017
and he was evicted from his home and lost relevant documents.
Plaintiff further related that he was surprised to receive the
motion because he had not yet served any Defendants, and he
questioned how the moving Defendants were made aware of his case
and able to file a motion without being served.
Plaintiff
requested that his case be stayed for 90 days so that he could
locate all the defendants he wished to assert claims against,
United States, 424 U.S. 800, 813 (1976) explained that federal
district courts may abstain from hearing cases and controversies
under “exceptional circumstances where the order to the parties
to repair to the state court would clearly serve an important
countervailing interest.” The threshold issue that must be
decided in a Colorado River abstention case is whether the two
actions are “parallel cases [that] involve the same parties and
‘substantially identical’ claims, raising ‘nearly identical
allegations and issues.’” IFC Interconsult, AG v. Safeguard
Intern. Partners, LLC., 438 F.3d 298, 306 (3d Cir. 2006)
(citations and quotations omitted).
5
The Anti–Injunction Act prohibits the federal courts from
interfering with proceedings in the state courts: “A court of
the United States may not grant an injunction to stay
proceedings in a State Court except as expressly authorized by
Act of Congress, or where necessary in aid of its jurisdiction,
or to protect or effectuate its judgments.” 28 U.S.C. § 2283.
3
and file an amended complaint.
There has been no activity in the case since Plaintiff’s
letter.
Even though the Court did not specifically address
Plaintiff’s request to stay his case for 90 days, the passage of
time effectively has provided that relief.
The 90-day period
expired on April 2, 2018.
Plaintiff was required to serve Defendants by November 27,
2017, see Fed. R. Civ. P. 4(m) (providing that a plaintiff must
serve a defendant within 90 days of filing his complaint), and
Plaintiff admits in his January 2, 2018 letter that he had not
served any Defendant.
The Court construes Plaintiff’s letter to
be a request to not only have more time to respond to
Defendants’ motion to dismiss, but to also effect service.
See
Higgs v. Atty. Gen. of the U.S., 655 F.3d 333, 339 (3d Cir.
2011) (“The obligation to liberally construe a pro se litigant’s
pleadings [and other submissions to the court] is wellestablished.”).
In so construing Plaintiff’s letter, the Court
finds that Plaintiff provided good cause for his lack of service
up until that point.
See Fed. R. Civ. P. 4(m) (providing that
the court may extend the time for service if the plaintiff shows
good cause for the failure).
It has been six months, however, since Plaintiff last
contacted the Court and requested time to file his opposition to
Defendants’ motion and properly serve all the defendants.
4
Nothing precluded Plaintiff from attempting service during that
time and there is nothing on the docket to suggest the moving
Defendants have been properly served.
Under Fed. R. Civ. P.
4(m), if a plaintiff fails to timely serve the defendants, the
Court may (1) dismiss the action on the motion of a defendant,
(2) dismiss the action on its own after notice to the plaintiff,
or (3) order that service be made within a specified time.
Accordingly, the Court will direct Plaintiff to show cause as to
why his complaint should not be dismissed for his failure to
serve the Defendants under Rule 4(m). 6
An appropriate Order will be entered.
Date:
July 2, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
6
The Court will deny without prejudice Defendants’ motion to
dismiss. If the Court determines that Plaintiff’s complaint
should not be dismissed after the resolution of the order to
show cause, Defendants may renew their motion.
5
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