Haberman v. Banc of America

Filing 17

ORDER denying 9 Motion for Entry of Default; denying 11 Motion to Dismiss ; denying 15 Motion for Entry of Default. Plaintiff shall have twenty-one (21) days following the issuance of this order to effect proper servi ce upon Defendant in accordance with all relevant requirements under the Federal Rules of Civil Procedure. A failure to comply may result in a dismissal of this case. Signed by District Judge Robert J. Conrad, Jr on 08/13/2014. (Pro se litigant served by US Mail.)(jlk)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:14-cv-12-RJC
LAWRENCE ALAN HABERMAN,

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Plaintiff,
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vs.
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BANC OF AMERICA,
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Defendant.
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____________________________________ )

ORDER

THIS MATTER comes before the Court on Plaintiff Haberman’s respective motions for
entry of default, (Docs. 9, 15), and Defendant Banc of America’s (the Bank) Motion to Dismiss
for Failure to Serve Process. (Doc. 11) They are ripe for review.
On January 13, 2014, Plaintiff, who is proceeding pro se, filed a complaint in this Court,
alleging that Defendant engaged in unauthorized transactions in his account with the Bank. (Doc.
1). On April 16, 2014, summons was issued against the Bank, but it does not appear that it was
properly served as no proof of service has been provided. (Doc. 8). Accordingly, Defendant did
not file an answer to the Complaint, and Plaintiff has twice moved this Court for entry of default
judgment. Defendant, in contrast, moves to dismiss this case under Rule 12(b)(5) of the Federal
Rules of Civil Procedure for insufficiency of service of process.
Rule 4 governs service of process and provides that a plaintiff is responsible for having a
summons containing a copy of the complaint served on a Defendant. FED. R. CIV. P. 4(c).
Additionally, Rule 4(m) establishes that such service occur within one hundred and twenty (120)
days following the filing of the complaint. FED. R. CIV. P. 4(m). Finally, Rule 4(m) permits

dismissal of an action without prejudice unless the Plaintiff “shows good cause for the failure,”
in which case the court “must extend the time for service for an appropriate period.” Id.
A court cannot exercise personal jurisdiction over a party until they have been properly
served in accordance with the applicable rules. The burden of establishing proper service rests
upon the Plaintiff. Dickerson v. Napolitano, 604 F.3d 732, 752 (4th Cir. 2010). “Pro se status,
however, is insufficient to establish good cause, even where the pro se plaintiff mistakenly
believes that service was made properly.” Hasan v. Fairfax County School Bd., 405 Fed.Appx.
793, 794 (4th Cir. 2010) (citing McNeil v. United States, 508 U.S. 106, 113 (1993). Good cause
“requires a showing that the plaintiff ‘made reasonable and diligent efforts to effect service prior
to the 120-day limit. . . .” Quann v. White-Edgewater, 112 F.R.D. 649, 659 (D. Md. 1986).
Here, it appears that Plaintiff, despite being incarcerated at present, has made good faith
efforts to serve Defendant by mailing a copy of the summons to the Bank’s legal department.
Further, Plaintiff’s motions for entry of default evince a belief, albeit mistaken, that his attempts
at service of process had been successful. Accordingly, the Court finds that Plaintiff has
demonstrated “good cause” sufficient to warrant an extension, and that the pending motions are
not yet ripe for adjudication. Plaintiff shall have twenty-one (21) days from the issuance of this
order to serve process upon Defendant in a manner consistent with the requirements of Rule 4 of
the Federal Rules of Civil Procedure.
It is therefore ordered that:
Plaintiff’s motions for entry of default judgment, (Docs. 9, 15), are denied. Likewise,
Defendant’s motion to dismiss under Rule 12(b)(5), (Doc. 11) is denied. This ruling does not
preclude the parties from bringing similar motions in the future if so warranted. Plaintiff shall

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have twenty-one (21) days following the issuance of this order to effect proper service upon
Defendant in accordance with all relevant requirements under the Federal Rules of Civil
Procedure. A failure to comply may result in a dismissal of this case.
Signed: August 13, 2014

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