Cowgill v. Burke
ORDER TO SHOW CAUSE by Chief Magistrate Judge Karen B. Molzen. Plaintiff's Show Cause Response due by 7/14/2017. (mlt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOHN HULBERT COWGILL,
Beneficiary John Hulbert Cowgill,
on behalf of the Private Foreign Trust,
CIV 17-0242 JB/KBM
PATRICK J. BURKE, President and Chief
Executive Officer for HSBC BANK USA,
N.A. as Trustee for Wells Fargo Asset
Securities Corporation, Mortgage PassThrough Certificates, Series 2007-7,
ORDER TO SHOW CAUSE
THIS MATTER comes before the Court on Defendant’s Motion to Dismiss
Plaintiff’s Complaint (Doc. 5), filed March 3, 2017, and the Honorable James O.
Browning’s Order of Reference (Doc. 12), filed June 23, 2017. 1 In his Motion, Defendant
contends that he has not yet been properly served with Plaintiff’s Complaint. Docs. 5 at
4; 10 at 2. Plaintiff responds that he indeed served Defendant on December 2, 2016,
“by leaving it with the agent authorized to accept the service of summons for the
principal.” Doc. 8 at 2. Defendant counters that Plaintiff’s service fits within the
requirements for service on a corporation, but not on an individual. Doc. 10 at 2 (citing
Rule 1-004 NMRA).
“To obtain personal jurisdiction over a nonresident defendant in a diversity action,
a plaintiff must show that [(i)] jurisdiction is legitimate under the laws of the forum state
In the Order of Reference, Judge Browning directed me “to conduct hearings, if warranted,
including evidentiary hearings, and to perform any legal analysis required to recommend to the
Court an ultimate disposition of the case.” Doc. 12.
and that [(ii)] the exercise of jurisdiction does not offend the due process clause of the
Fourteenth Amendment.” Benton v. Cameco Corp., 375 F.3d 1070, 1075 (10th Cir.
2004) (internal quotations omitted). “A judgment entered absent sufficient service of
process upon a defendant violates due process and is void as to the defendant for want
of personal jurisdiction.” T.H. McElvain Oil & Gas Ltd. P'ship v. Grp. I: Benson-MontinGreer Drilling Corp., 2017-NMSC-004, 388 P.3d 240, 248, reh'g denied (Nov. 9, 2016),
cert. denied sub nom. T.H. McElvain Oil & Gas Ltd. P'ship v. Grp. I: £Benson-MontinGreer Drilling Corp., 137 S. Ct. 1584 (2017).
Under New Mexico Rule 1-004(I)(2): “[s]ervice upon a . . . trustee or other
fiduciary [shall be made] in the same manner and priority for service as provided in
Paragraphs F, G or J of this rule as may be appropriate.” Rule 1-004(I)(2) NMRA. As
noted in the caption, Plaintiff here is suing “PATRICK J. BURKE, President and Chief
Executive Officer for HSBC BANK USA, N.A. as Trustee for Wells Fargo Asset
Securities Corporation, Mortgage Pass-Through Certificates, Series 2007-7.” See Doc.
1-1 at 4 (emphasis added). In other words, Plaintiff is suing Defendant as an individual.
Therefore, Rule 1-004(F) NMRA applies. As Judge Johnson has summarized:
[the] New Mexico rules lay out a hierarchy of methods for service of
process on an individual. First, NMRA, Rule 1-004(F)(1) requires service
to be attempted on the individual personally. Next, Rule 1-004(F)(2)
requires service to be attempted on “some person residing at the usual
place of abode of the defendant” and sent by first class mail to “the
defendant's last known mailing address.” Only then may Rule 1-004(F)(3)
be invoked, which permits a copy of the process to be delivered and
mailed to the defendant's “actual place of business or employment.”
Moreno v. Taos Cty. Bd. of Comm'rs, 778 F. Supp. 2d 1139, 1142-43 (D.N.M. 2011).
This requirement is not necessarily onerous, as under Rule 1-004(F)(1)(b) personal
service of process may be accomplished “by mail or commercial courier service as
provided in Subparagraph (3) of Paragraph E of this rule.” Rule 1-004(F)(1)(b) NMRA. 2
However, until Plaintiff has properly served Defendant, this Court is without jurisdiction
to adjudicate his claims. See Flippen v. Las Cruces Sun-News, Inc., CIV 07-1267
JAP/CG, 2008 WL 11334438, at *2 (D.N.M. June 4, 2008); Sawyer v. USAA Ins. Co.,
839 F. Supp. 2d 1189, 1226 (D.N.M. 2012) (“A New Mexico court has no power to bind
a party to a judgment when that party has not been properly served with process.”).
Where service of process in state court is defective or incomplete,
28 U.S.C. § 1448 and Fed. R. Civ. P. 4(m) give the plaintiff a deadline from the date
defendant removes the case to federal court in which the imperfect or defective service
may be cured. Baumeister v. N.M. Comm'n for the Blind, 409 F. Supp. 2d 1351, 1352
(D.N.M. 2006); see also Green v. Bank of Am., N.A., CIV 13-0937 JAP/KBM, 2013 WL
11336861, at *2 (D.N.M. Nov. 8, 2013); Fed. R. Civ. P. 4(m); 28 U.S.C. § 1448. “If a
defendant is not served within 90 days after the complaint is filed, the court—on motion
or on its own after notice to the plaintiff—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).
Pursuant to that provision:
[s]ervice may be made by mail or commercial courier service provided that the
envelope is addressed to the named defendant and further provided that the
defendant or a person authorized by appointment, by law or by this rule to accept
service of process upon the defendant signs a receipt for the envelope or
package containing the summons and complaint, writ or other process. Service
by mail or commercial courier service shall be complete on the date the receipt is
signed as provided by this subparagraph. For purposes of this rule ‘signs’
includes the electronic representation of a signature.
Rule 1-004(E)(3) NMRA.
This action was removed to this Court on February 17, 2017. Doc. 1. Therefore,
Plaintiff had until May 18, 2017, to properly serve Defendant. As he failed to do so, this
case is subject to dismissal without prejudice.
IT IS HEREBY ORDERED that, in order to avoid dismissal of this action, Plaintiff
must either properly effect service of the Complaint on Defendant, or provide the Court
with a written explanation showing good cause why service has not been made, on or
before Friday, July 14, 2017.
UNITED STATES CHIEF MAGISTRATE JUDGE
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