United States District Court, N.D. Mississippi, Oxford Division
OPINION AND ORDER
M. BROWN UNITED STATES DISTRICT JUDGE.
real estate foreclosure action is before the Court on the
defendants' separate motions to dismiss. Doc. #35; Doc.
#37; Doc. #39.
January 9, 2017, pro se plaintiffs Paul and Jacqueline
Hardaway filed a “Complaint for Damages and Request for
Temporary Injunction or Restraining Order, ” naming as
defendants Litton Loan Servicing, LP, Ocwen Loan Servicing,
LLC, and Rushmore Loan Management Services, Inc. Doc. #1.
While the complaint purported to be filed by both Paul and
Jacqueline, it was signed only by Paul. Id. at 5. On
February 3, 2017, each of the defendants moved to dismiss the
complaint for insufficient service of process under Federal
Rule of Civil Procedure 12(b)(5).
April 11, 2017, the Hardaways filed proofs of service of the
summonses on the defendants. Doc. #13. The same day, without
leave of the Court, the Hardaways filed a “First
Amended Complaint for Damages and Request for Temporary
Injunction or Restraining Order.” Doc. #14. On April
25, 2017, Ocwen and Litton filed a joint motion to strike the
amended complaint. Doc. #17. Rushmore filed a motion to
dismiss the amended complaint, Doc. #18, and a motion to
strike it, Doc. #19. On May 9, 2017, the Hardaways filed
proofs of service of summonses on the
defendants. Doc. #20. On May 30, 2017, United States
Magistrate Judge Roy Percy granted the defendants'
motions to strike the amended complaint. Doc. #22. Having
struck the amended complaint, Judge Percy noted that
“Plaintiffs' Complaint (Docket 1) will remain the
active Complaint.” Id.
the original complaint was signed only by Paul, this Court,
on June 7, 2017, ordered the Hardaways to re-file the
original complaint with both of their signatures or to file a
stipulation of dismissal as to Jacqueline. Doc. #23. On June
16, 2017, the Hardaways re-filed the complaint with both of
their signatures. Doc. #25. That same day, the Hardaways also
filed a motion for leave to amend their complaint, Doc. #26,
attaching as an exhibit a proposed amended complaint, Doc.
#26-1. Judge Percy denied the Hardaways' motion for leave
to amend on July 21, 2017. Doc. #29.
order issued September 27, 2017, this Court, among other
things, denied the defendants' motions to dismiss and
afforded the Hardaways fourteen days to effect proper service
of process on the defendants. Doc. #30. Summonses were reissued
on October 10, 2017, Doc. #31, and served on the defendants
on October 11, 2017, Doc. #32. On November 1, 2017, Ocwen
moved to dismiss under Rules 12(b)(5) and (6), Doc. #35;
Litton moved to dismiss under Rules 12(b)(5) and (6), Doc.
#37; and Rushmore moved to dismiss under Rules 4(m) and
12(b)(5), Doc. #39. The Hardaways did not respond to any of
the motions to dismiss.
the defendants argue that dismissal is warranted under Rule
12(b)(5) because the Hardaways failed to serve on them the
active complaint. Doc. #35 at 1; Doc. #37 at 1; Doc. #39 at
service of process is challenged, the serving party bears the
burden of proving its validity or good cause' for failing
properly to effect service.” Shabazz v. City of
Hous., 513 Fed.Appx. 263, 264 (5th Cir. 2013) (quoting
Sys. Signs Supplies v. U.S. Dep't of Justice,
903 F.2d 1011, 1013 (5th Cir. 1990). “The general rule
is that a signed return of service constitutes prima facie
evidence of valid service, which can only be overcome by
strong and convincing evidence.” People's
United Equip. Fin. Corp. v. Hartman, 447 Fed.Appx. 522,
524 (5th Cir. 2011) (alterations and quotation marks
support of their argument that service of process was
insufficient, the defendants attached as exhibits to their
respective motions a copy of what the Hardaways served them
on October 11, 2017. These exhibits show that the Hardaways
attached two complaints to the summonses-the original
complaint, which was superseded by the June 16 complaint, and
the proposed amended complaint, which was never accepted for
filing. Doc. #35-3; Doc. #37-3; Doc. #39-1.
Because the Hardaways did not respond to the motions to
dismiss, they have presented no evidence to dispute the
content of these exhibits or to explain why they did not
serve the active complaint on the defendants.
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). Rule 4 provides, in pertinent part, “A summons
must be served with a copy of the complaint. The plaintiff is
responsible for having the summons and complaint served
within the time allowed ….” Fed.R.Civ.P.
4(c)(1). Under this rule, “[t]he currently effective
complaint must accompany summons. If the original complaint
has been superseded by an amended complaint, service is
ineffective if the original (rather than the amended)
complaint is served.” Morris ...