PENNINGTON et al v. WELLS FARGO BANK N.A.

Filing 34

MEMORANDUM AND ORDER THAT PLAINTIFFS' MOTION TO REMAND THE CASE TO STATE COURT IS DENIED. DEFENDANT'S MOTION TO DISMISS IS DENIED WITHOUT PREJUDICE. THE CLERK OF COURT SHALL FURNISH PLAINTIFFS WITH A BLANK COPY OF THIS COURT'S CURRENT STANDARD FORM FOR FILING AN APPLICATION TO PROCEED IN FORMA PAUPERIS AND WITH FORM USM-285. SIGNED BY HONORABLE LOUIS H. POLLAK ON 3/18/12. 3/22/12 ENTERED AND COPIES MAILED TO PRO SE PARTIES AND E-MAILED.(mbh, ). (Copy of ifp application and USM-285 forms forwarded to Plaintiffs)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JEFFERY PENNINGTON and
NIKKI PENNINGTON, pro se

Civil Action
No. 11-CV-2896

Plaintiffs,
v.
WELLS FARGO BANK, N.A.,
successor to WELLS FARGO HOME
MORTGAGE, JOHN DOE (investors) 110,000, et al.
Defendants.

MEMORANDUM & ORDER
March 18, 2012

Pollak, J.

Plaintiffs Jeffery Pennington and Nikki Pennington commenced this action on
March 25, 2011, by filing a complaint, pro se, in the Philadelphia Court of Common
Pleas. In the complaint, the plaintiffs asserted various claims under state and federal law
relating to defendant Wells Fargo Bank, N.A.’s servicing of a mortgage on a property
located at 4711 Greene St., Philadelphia, Pennsylvania, that the plaintiffs state is jointly
owned by them. On April 29, 2011, Wells Fargo removed the case to this court.

Presently pending before the court are: (1) a motion to remand the case to state
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court filed by plaintiffs (Docket no. 5); and (2) a motion to dismiss filed by Wells Fargo
(Docket no. 6).

I. Plaintiffs’ Motion to Remand

Plaintiffs contend that Wells Fargo’s notice of removal was untimely, and that the
case should therefore be remanded to state court. Pursuant to 28 U.S.C. § 1446(b)(1), a
notice of removal, “shall be filed within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of the initial pleading setting forth the claim for
relief upon which such action or proceeding is based. . . .” Interpreting section
1446(b)(1), the Supreme Court has held that “a named defendant’s time to remove is
triggered by simultaneous service of the summons and complaint, or receipt of the
complaint ‘through service or otherwise,’ after and apart from the service of the
summons, but not by mere receipt of the complaint unattended by any formal service.”
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999). While
it appears from the record that Wells Fargo received notice of the present action shortly
after its commencement, the record contains no evidence that Wells Fargo was formally
served with the summons and complaint at any time prior to the case’s removal to this
court. Removal was therefore timely. See id.; see also Skirica v. Nationwide Ins. Co., 416
F.3d 214, 222 (3d Cir. 2005). Accordingly, plaintiffs’ motion to remand will be denied.

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II. Wells Fargo’s Motion to Dismiss

Wells Fargo argues that the case should be dismissed under Rule 12(b)(5) of the
Federal Rules of Civil Procedure because Wells Fargo was not properly served. Plaintiffs
contend that “Proper Service was made on defendants on . . . May 10th 2011 by a Notary
Certified Mail Return Receipt,” but do not attach evidence of service or specify in which
state they attempted to serve Wells Fargo. (Docket no. 9, at p.6) Proper service on the
defendant of the summons and complaint is required for a court to obtain personal
jurisdiction over the defendant. Grand Entm’t Grp. v. Star Media Sales, Inc., 988 F.2d
476, 492 (3d Cir. 1993). In a removed case, insufficiencies in service of process in the
state court from which the case was removed may be cured pursuant to 28 U.S.C. § 1448,
which provides that,

[i]n all cases removed from any state court to any district court of the
United States in which any one or more of the defendants has not been
served with process or in which the service has not been perfected prior to
removal, or in which process served proves to be defective, such process or
service may be completed or new process issued in the same manner as in
cases originally filed in such district court.

Since Wells Fargo removed the case to this court on April 29, 2011, the Federal Rules of
Civil Procedure governed plaintiffs’ May 10, 2011 attempt to serve process. While the
Federal Rules do not provide for service of process on a corporation by mail, they permit
service by “following state law for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is located . . . .” Fed. R. Civ. P.
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4(h)(1)(A), 4(e)(1). The Pennsylvania Rules of Civil Procedure permit plaintiffs to serve
process by mail on defendants who are located outside the Commonwealth. See Pa. R.
Civ. P. 403, 404(2) (making Rule 403 applicable to corporate defendants). But the record
in the present case does not contain any evidence of a “receipt signed by the defendant or
his authorized agent,” as required to establish proper service under Pennsylvania law. See
Pa. R. Civ. P. 403, 404, 410. Therefore, plaintiffs have not established that Wells Fargo
has been properly served.

Pursuant to Rule 4(m), “[i]f a defendant is not served within 120 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.” Plaintiffs request that they be granted leave to proceed in forma
pauperis and that the U.S. Marshall effect service of process. I will direct the clerk of
court to furnish plaintiffs with a blank copy of the court’s current standard form for filing
an application to proceed in forma pauperis, along with Form USM-285, a request for
service of process by U.S. Marshall. Within thirty days, plaintiffs may either return the
application to proceed in forma pauperis and Form USM-285 or, alternately, effect
service of process on defendants at their own expense and in accordance with Rule 4 of
the Federal Rules of Civil Procedure.

Wells Fargo’s motion to dismiss will be denied without prejudice to re-raising the

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motion once defendants have been properly served.

III. Order

AND NOW, this 18th day of March, 2012, it is hereby ordered that:
1.

Plaintiffs’ motion to remand the case to state court is DENIED;

2.

Wells Fargo’s motion to dismiss is DENIED without prejudice;

3.

The Clerk of Court shall furnish plaintiffs with a blank copy of this Court’s current
standard form for filing an application to proceed in forma pauperis and with form
USM-285;

4.

Within thirty days after the date of this order, the plaintiffs shall complete and
return the application to proceed in forma pauperis and USM-285, if appropriate,
to the Clerk of Court or, alternately, shall effect service of process on defendants at
their own expense in accordance with Rule 4 of the Federal Rules of Civil
Procedure.

BY THE COURT:

/s/ Louis H. Pollak
Pollak, J.

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