Mullins et al v. PennyMac Loan Services, LLC et al

Filing 49

REPORT AND RECOMMENDATIONS ON FEDERAL DEFENDANTS' MOTION TO DISMISS AND REGARDING UNSERVED AND UNIDENTIFIED DEFENDANTS - If the Court adopts this Report, all claims made in this case will have been dismissed. The Court should therefore enter fin al judgment pursuant to Fed. R. Civ. P. 54. Objections to R&R due by 11/4/2016. Signed by Magistrate Judge Michael R. Merz on 10/18/2016. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JAMES R. MULLINS, JR., et al.,
Plaintiffs,

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vs

:

Case No. 3:16-cv-137

District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

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PENNYMAC LOAN SERVICES, LLC,
Et al.,

Defendants.

:

REPORT AND RECOMMENDATIONS ON FEDERAL
DEFENDANTS’ MOTION TO DISMISS AND REGARDING
UNSERVED AND UNIDENTIFIED DEFENDANTS

Federal Defendants’ Motion to Dismiss

This case, brought pro se by Plaintiffs to seek redress for the foreclosure of the mortgage
on their residence,

is before the Court on Motion to Dismiss of Defendants Government

National Mortgage Association (aka “Ginnie Mae”) and the United States Department of
Agriculture (collectively the “Federal Defendants”)(ECF No. 47). The Motion was filed and
served September 23, 2016. The Court then gave Plaintiffs notice that any memorandum in

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opposition was due to be filed and served by October 17, 2016, the time regularly provided for
responses to motions under S. D. Ohio Civ. R. 7.2 Plaintiffs have filed no opposition.
The Federal Defendants seek dismissal under Fed. R. Civ. P. 12(b)(1) on grounds the
Court lacks subject matter jurisdiction and under Fed. R. Civ. P. 12(b)(6) on grounds the
Complaint fails to state a claim on which relief can be granted.
Federal courts are courts of limited jurisdiction; they are empowered to hear only those
cases which are within the judicial power of the United States as defined in the United States
Constitution and as further granted to them by Act of Congress. Finley v. United States, 490
U.S. 545, 550 (1989); Aldinger v. Howard, 427 U.S. 1, 15 (1976). Therefore there is a
presumption that a federal court lacks jurisdiction until it has been demonstrated. Turner v.
President, Directors and Co. of the Bank of North America, 4 U.S. 8 (1799). Facts supporting
subject matter jurisdiction must be affirmatively pleaded by the person seeking to show it.
Bingham v. Cabot, 3 U.S. 382 (1798). The burden of proof is on the party asserting jurisdiction
if it is challenged. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182-83 (1935).
A federal court is further obliged to note lack of subject matter jurisdiction sua sponte. Louisville
& Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908); Capron v. Van Noorden, 6 U.S. 126
(1804); Answers in Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd., 556 F.3d 459, 465 (6th
Cir. 2009); Clark v. United States, 764 F.3d 653 (6th Cir. 2014).
The Federal Defendants argue this Court lacks subject matter jurisdiction because each of
them is an agency of the sovereign, the United States of America, which may not be sued in
either federal or state court without its consent. That is to say, they participate in the sovereign
immunity of the national government.

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Under the traditional doctrine of sovereign immunity, the United States may not be sued
without its consent. Hercules, Inc., v. United States, 516 U.S. 417 (1996); Lehman v. Nakshian,
453 U.S. 156 (1981). A waiver of sovereign immunity must be unequivocally expressed in
statutory text. FAA v. Cooper, 566 U.S. ___, 132 S. Ct. 1441, 182 L. Ed. 2d 497 (2012), citing,
e.g., Lane v. Pena, 518 U.S. 187 (1996). Any ambiguities are to be construed in favor of
immunity. United States v. Williams, 514 U.S. 527 (1995). In order to sue the United States, a
plaintiff must identify a waiver of sovereign immunity in order to proceed. Reetz v. United
States, 224 F.3d 794, 795 (6th Cir. 2000), citing Dalehite v. United States, 346 U.S. 15, 30
(1953).
Challenged to present some evidence the United States has waived its immunity for this
suit, Plaintiffs have completely failed to respond. Therefore the Federal Defendants Motion
should be GRANTED and this action should be DISMISSED WITHOUT PREJUDICE for lack
of subject matter jurisdiction as to the Federal Defendants. This recommendation renders the
Federal Defendants’ Fed. R. Civ. P. 12(b)(6) Motion moot.

Friendly Financial Services

The Complaint names as a Defendant an entity named Friendly Financial Services, LLC,
who allegedly acted as an agent of Plaintiffs and Defendant Bank of America in effectuating
Plaintiffs’ loan modification (Complaint, ECF No. 2, PageID 80-81). When filing suit, Plaintiffs
caused process to be issue for service on Friendly Financial (ECF No. 3). On May 31, 2016, the
United States Marshal’s Service returned that process unexecuted (ECF No. 19). Plaintiffs then
filed a corrected address for Friendly Financial and caused alias process to issue (ECF No. 24,

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26). That alias process was also returned unexecuted by the Marshal on August 25, 2016 (ECF
No. 42). No further process has issued as to Friendly Financial.
Fed. R. Civ. P. 4(m) provides that a case is to be dismissed as to a defendant who has not
been served within ninety days of the filing of the complaint. The Complaint in this case was
filed on April 13, 2016, which is 178 days ago, or nearly twice the time provided by the Rule.
The Magistrate Judge therefore recommends that the Complaint as against Friendly Financial be
DISMISSED WITHOUT PREJUDICE for lack of service of process unless Plaintiffs show good
cause for the failure to service not later than the date on which objections to this Report and
Recommendations are due (November 4, 2016).

Anonymous Defendants

The Complaint names as Defendants “All Persons Unknown, claiming any Legal or
Equitable Right, Title, Estate, Lien, Or Interest in the Property Described in the Complaint
Adverse to Plaintiffs' Title or Any Cloud on Plaintiffs' Title Thereto” and “Does 1-100,
inclusive.” (ECF No. 2, PageID 76.) None of these parties have been identified or served with
process. Therefore, pursuant to Fed. R. Civ. P. 21, it is respectfully recommended that the
Complaint should be dismissed as to them without prejudice.

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Finality

If the Court adopts this Report, all claims made in this case will have been dismissed.
The Court should therefore enter final judgment pursuant to Fed. R. Civ. P. 54.

October 18, 2016.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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