United States District Court, N.D. Mississippi, Oxford Division
M. BROWN UNITED STATES DISTRICT JUDGE
the Court are “Plaintiff's Motion for Relief from
Judgment or Order” and a “Motion for Extension to
File Memorandum in Support of Motion for Relief from Judgment
or Order.” Docs. #43, #44.
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 was purportedly filed by both Paul and
Jacqueline, it was signed only by Paul. See id. at
5. On February 3, 2017, each defendant moved to dismiss the
complaint for insufficient service of process under Federal
Rule of Civil Procedure 12(b)(5). Docs. #4, #5, #7.
April 11, 2017, the Hardaways filed proofs of service of
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; and Rushmore filed a motion to dismiss
pursuant to Federal Rules of Civil Procedure 12(b)(5) and
4(m), and a motion to strike the amended complaint. Docs.
#17, #18, #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 motions to strike the amended complaint for failure to
comply with Federal Rule of Civil Procedure 15, leaving the
original complaint as the “active” complaint.
Doc. #22 at 1.
the original complaint was signed only by Paul, on June 7,
2017, this Court 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 at 2. On
June 16, 2017, the Hardaways re-filed the complaint with both
of their signatures. Doc. #25 at 6. The same day, the
Hardaways also filed a motion for leave to file an amended
complaint, Doc. #26, attaching the proposed amended complaint
as an exhibit, Doc. #26-1. The defendants filed responses
opposing the motion for leave to amend. Docs. #27, #28. Judge
Percy denied the Hardaways' motion for leave to file an
amended complaint on July 21, 2017. Doc. #29.
memorandum opinion and order issued September 27, 2017, this
Court, among other things, denied the defendants' motions
to dismiss and afforded the Hardaways fourteen additional
days to effect proper service of process on the defendants.
Doc. #30 at 8. Summonses were reissued on October 10, 2017,
and served on the defendants the next day. Doc. #31; Doc. #32
at 2, 4, 6.
November 1, 2017, Ocwen moved to dismiss under Rules 12(b)(5)
and (b)(6), Doc. #35; Litton moved to dismiss under Rules
12(b)(5) and (b)(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.
September 17, 2018, the Court issued an opinion and a final
judgment dismissing the Hardaways' case without prejudice
under Rule 12(b)(5) for failing to sufficiently serve process
on Litton, Ocwen, and Rushmore. Docs. #41, #42. On October
15, 2018, the Hardaways filed “Plaintiff's Motion
for Relief from Judgment or Order” and a “Motion
for Extension to File Memorandum in Support of Motion for
Relief from Judgment or Order.” Docs. #43, #44. Two
weeks later, Rushmore filed a response opposing the motion
for relief, which Litton and Ocwen joined the same day. Docs.
#45, #46. The Hardaways did not reply.
their motion for relief, the Hardaways, “pursuant to
Rule 60 of the Federal Rules of Civil Procedure, ” ask
the Court to grant them relief from the order dismissing
their case and “allow this matter to proceed on its
merits.” Doc. #43 at 1-2. In their motion for
extension, representing that they “have since found an
attorney to assist [them] with [their] case, ” the
Hardaways seek “an additional thirty (20) [sic]
days” to “allow … their newly acquired
attorneys to file the Memorandum” in support of their
motion for relief. Doc. #44 at 1-2.
initial matter, no attorney has appeared in this case on the
Hardaways' behalf. Moreover, the extension date requested
by the Hardaways to file a memorandum in support of their
motion for relief has passed with no memorandum filed. The