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Ellis v. U.S. Bank National Association

United States District Court, N.D. Mississippi, Oxford Division

October 27, 2017

AZEZ WESLIN ELLIS JR., ESTATE PLAINTIFF
v.
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE a.k.a./d.b.a Ocwen Loan Servicing, LLC DEFENDANT

          MEMORANDUM OPINION AND ORDER

          DEBRA M. BROWN, UNITED STATES DISTRICT JUDGE.

         This real property case is before the Court on the motion to dismiss of U.S. Bank National Association, as Trustee for Structured Asset Securities Corporation Mortgage Pass-Through Certificates, Series 2006-W1 (“U.S. Bank”).[1] Doc. #5.

         I

         Procedural History

         On April 3, 2017, Azez Weslin Ellis, Jr., purporting to act on behalf of his “Estate, ” filed a complaint against U.S. Bank in the Chancery Court of DeSoto County, Mississippi. Doc. #2.

         Although by no means clear, the complaint asserts claims related to foreclosure proceedings on property allegedly owned by Ellis. U.S. Bank removed the state court action to this Court on April 25, 2017. Doc. #1. Approximately a week later, U.S. Bank filed a motion to dismiss. Doc. #5.

         Ellis did not respond to the motion.

         II

         Analysis

         U.S. Bank's motion to dismiss seeks dismissal of Ellis' claims for failure to state a claim, under Federal Rule 12(b)(6); and for insufficient service of process, under Rule 12(b)(5).[2]

         A. Rule 12(b)(5)

         “Federal Rule of Civil Procedure 12(b)(5) provides for dismissal of a claim if service of process was not timely made in accordance with Federal Rule of Civil Procedure 4 or was not properly served in the appropriate manner.” Thomas v. New Leaders for New Sch., 278 F.R.D. 347, 349-50 (E.D. La. 2011). “A district court … has broad discretion to dismiss an action for ineffective service of process.” Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 635 (5th Cir. 1994).

         Rule 4(h) governs the service of associations, like U.S. Bank. Rule 4(h) requires that for service “in a judicial district of the United States” to be valid, the service must be accomplished (1) in compliance with the “state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made;” or (2) “by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and--if the agent is one authorized by statute and the statute so requires--by also mailing a copy of each to the defendant.” Fed.R.Civ.P. 4(e), (h). “When service of process is ...


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