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Smith v. Bray

United States District Court, Southern District of New York

November 10, 2014




Before the Court is a motion to dismiss filed by Nationstar Mortgage LLC ("Nationstar"), First Horizon Home Loans ("First Horizon"), Jay Bray, Shelley Trevino, Chris Hubbert, Leslie Maxwell, [1] Rhonda McDonald, and Bryan Jordan (collectively, "Individual Defendants" and, together with Nationstar and First Horizon, "Defendants"). Defendants move to dismiss Plaintiffs' Amended Complaint[2] for lack of personal jurisdiction, insufficient service of process, and failure to state a claim upon which relief may be granted. Defendants' motion to dismiss is GRANTED pursuant to Rule 12(b)(5) because Plaintiffs have failed to properly serve any of Defendants. The Court need not address Defendants' alternative bases for dismissal.


Plaintiffs, proceeding pro se, filed their Verified Complaint in New York Supreme Court, Westchester County, on September 6, 2013, asserting claims relating to the servicing of their home mortgage, including alleged violation of escrow-cushion provisions, conversion of their mortgage payments, and false reporting to credit bureaus. (See Notice of Removal, ECF No. 1.) On the same day, Plaintiffs sent via first-class mail six copies of the summons and complaint to Nationstar's Texas address for Nationstar, Chris Hubbert, Shelley Trevino, Rhonda McDonald, Leslie Maxwell and Jay Bray, and two copies to First Horizon's Texas address for First Horizon and Bryan Jordan. (See Pis.' Opp. Defs.' Mot. Dismiss ¶ 2, ECF No. 30.) Defendants removed the action to this Court on October 10, 2013 (see Notice of Removal, ECF No. 1.), and by letter dated October 24, 2013, requested a premotion conference concerning their anticipated motion to dismiss for, inter alia, insufficient service of process (see Letter from Constantine Pourakis to Judge Roman, Oct. 24, 2013, ECF No. 3). Before the premotion conference, on November 4, Plaintiffs again mailed the summons and complaint to the same recipients as on September 6, this time by certified mail. (See Letter from Plaintiffs to Judge Roman, Nov. 7, 2013, ECF No. 9.) It appears that in the November 4 mailings (and possibly also in the September 6 mailings[3]), Plaintiffs included forms entitled "Statement of Service by Mail and Acknowledgment of Receipt by mail of Summon [sic] and Complaint." (See Id . at 26-34.)

The premotion conference for Defendants' motion to dismiss was held before this Court on November 22, 2013. At the conference, the Court informed Plaintiffs that merely mailing the summons and complaint is not the same as serving Defendants under the rules, and set a briefing schedule for Defendants' motion to dismiss. Plaintiffs took no further steps after the conference to cure the service deficiencies.


"Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." Dynegy Midstream Servs. v. Trammochem, 451 F.3d 89, 94 (2d Cir. 2006) (internal quotation marks omitted). Plaintiff bears the burden of proving adequate service, Hood v. Ascent Med. Corp., No. 13 CIV. 628, 2014 WL 5089559, at *2 (S.D.N.Y. Oct. 9, 2014); accord Khan v. Khan, 360 F.App'x 202, 203 (2d Cir. 2010) (summary order), and conclusory allegations that a defendant was properly served do not satisfy this burden, Mende v. Milestone Tech., Inc., 269 F.Supp.2d 246, 251 (S.D.N.Y. 2003). In considering a Rule 12(b)(5) motion to dismiss for insufficient service of process, a court must look to matters outside the complaint to determine whether it has jurisdiction. Darden v. DaimlerChrysler N. Am. Holding Corp., 191 F.Supp.2d 382, 387 (S.D.N.Y. 2002).

As an initial matter, Plaintiffs allude in their papers to the argument that Defendants waived the defense of insufficient service of process by removing the action to federal court. "Courts and commentators agree that merely by removing a case from state to federal court a party does not waive any of its defenses under Rule 12(b), including a motion to dismiss for improper service." Gay v. Carlson, No. 89 CIV. 4757 (KMW), 1991 WL 190584, at *5 (S.D.N.Y. Sept. 17, 1991), aff'd, 60 F.3d 83 (2d Cir. 1995); see also Holzsager v. Valley Hosp., 646 F.2d 792, 796 (2d Cir. 1981). Defendants have not waived the defense because they asserted it in their very first submission in response to the Complaint.

A. Service upon Individual Defendants Was Defective

Rule 4(e) of the Federal Rules of Civil Procedure states that service upon an individual within a judicial district of the United States may be completed by:

(1) 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 or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and ...

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