Lamoureux v. Deutsche Bank National Trust Company et al

Filing 20

MEMORANDUM AND ORDER denying 12 Motion to Dismiss. So Ordered by Chief Judge William E. Smith on 7/10/2018. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
THOMAS LAMOUREUX,
)
)
Plaintiff,
)
C.A. No. 17-552 WES
)
v.
)
)
OCWEN LOAN SERVICING, LLC,
)
DEUTSCHE BANK NATIONAL TRUST
)
COMPANY AS TRUSTEE FOR ARGENT
)
SECURITIES, INC. ASSET BACKED
)
PASS-THROUGH CERTIFICATES, SERIES )
2003-W6, ALIAS,
)
)
Defendants.
)
___________________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Before the Court is Defendants’ Ocwen Loan Servicing, LLC
(“Ocwen”) and Deutsche Bank National Trust Company, as Trustee for
Argent Securities Inc., Asset-Backed Pass-Through Certificates,
Series 2003-W6 (“Deutsche”) (collectively “Defendants”) Motion to
Dismiss (ECF No. 12) Plaintiff Thomas Lamoureux’s (“Lamoureux” or
“Plaintiff”) Complaint (ECF No. 1).

For the following reasons,

the Motion to Dismiss is DENIED.
I. Background
On November 29, 2017, Ocwen scheduled a foreclosure sale of
Plaintiff’s home. (See Compl. ¶ 6.) Plaintiff filed the Complaint
on November 28, the day before the sale was to occur.
Dismiss 1.)

(Mot. to

Plaintiff filed an Emergency Motion for a Temporary

Restraining Order, with respect to which the Court held a hearing
on November 29.

(See Pl.’s Resp. in Opp’n to Defs.’ Mot. to

Dismiss (“Pl.’s Resp.”) 1, ECF No. 18-1.)

Prior to the hearing,

“the complaint, all exhibits, and the Motion were emailed to
[Defendants’] Attorney.” (Id.) On March 9, 2018, the Court issued
a Show Cause Order (ECF No. 9) ordering Plaintiff to show why the
case should not be dismissed.

(Mot. to Dismiss 1.)

Plaintiff

filed a Response to the Order to Show Cause (ECF No. 10) on April
2, 2018 stating that Defendants had been served.
2.)

(See id. at 1-

Defendants then filed this Motion to Dismiss pursuant to Rule

12(b)(5) of the Federal Rules of Civil Procedure.

(See id. at 1.)

II. Discussion
Under Federal Rule of Civil Procedure Rule 12(b)(5), the
complaint may be dismissed for “insufficient service of process.”
Rule 4(m) provides that Defendants need to be served within ninety
days of Plaintiff filing the complaint; otherwise, the court must
dismiss the action without prejudice.

Fed. R. Civ. P. 4(m).

If,

however, the plaintiff shows good cause for the failure to serve,
the court must extend the time for service.

Id.

Plaintiff filed

his Complaint on November 28, 2017, and he did not serve Defendants
until

March

deadline.

9,

2018,

almost

two

weeks

after

the

ninety-day

(Mot. to Dismiss 2.)

“[T]he burden of demonstrating the requisite good cause
rest[s] upon [the] plaintiff.”

United States v. Ayer, 857 F.2d
2

881, 884-85 (1st Cir. 1988).

Though the plaintiff bears the

burden, determining good cause under Rule 4(m) remains with “the
sound discretion of the trial court.”

Ryan v. Krause, No. 1:11-

cv-00037-JAW, 2012 WL 2921815, at *8 (D.R.I. July 17, 2012).

When

“making extension decisions under Rule 4(m)[,] a district court
may consider factors like a statute of limitations bar, prejudice
to

the

defendant,

service.”

actual

notice

of

a

lawsuit,

and

eventual

Ruiz v. Rhode Island, No. 16-507 WES, 2018 WL 514539,

at *2 (D.R.I. Jan. 22, 2018) (quoting Efaw v. Williams, 473 F.3d
1038, 1041 (9th Cir. 2007)).
Here, like Ruiz, Defendants likely had actual notice of the
lawsuit because copies of the complaint and exhibits were sent to
Defendants’ counsel the day before they were filed.
*3; (Pl.’s Resp. Ex. A, ECF No. 18-2.)

See id. at

Further, it is unlikely –

and Defendants do not contend that – they were prejudiced by the
eleven-day delay.

See Gray v. Derderian, No. C.A. 04-312L, 2007

WL 296212, at *5 (D.R.I. Jan. 26, 2007) (“[P]rejudice has been
defined in the context of service as ‘involving impairment of
defendant’s ability to defend on the merits, rather than foregoing
a procedural or technical advantage.’” (quoting Thompson v. Sears,
Roebuck & Co., No. Civ. A. 04-5342, 2006 WL 573796, at *3 (E.D.
Pa. Mar. 3, 2006))).

Plaintiff also argues that the statute of

limitations has passed on some of their claims, which are based on

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a “purported 2016 foreclosure” and would be barred if Plaintiff
had to refile.

(See Pl.’s Resp. 2.)

This Court has previously held that there are “ample grounds
. . . to exercise its discretion and allow the case to proceed,
particularly where [the defendant] has been served, and there is
no defect in service other than timeliness.” Bay St. Neighborhood,
LLC v. Devine, No. 15-150 S, 2015 WL 6696810, at *11 (D.R.I. Nov.
3, 2015).

Further, “if this Court dismisses the case without

prejudice, [Plaintiff] would simply refile the action.”

Id.

(reasoning it would be inefficient to dismiss the complaint for
only a delay in service).
was the eleven-day delay.

In this case, the only service defect
Therefore, to avoid an exercise in

futility, this Court exercises its discretion and deems Defendants
properly served.
III. Conclusion
For the above reasons, Defendants’ Motion to Dismiss (ECF
No. 12) is DENIED.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: July 10, 2018

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