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Crespo v. Mortgage Electronic Registration Systems Inc.

United States District Court, W.D. North Carolina, Asheville Division

March 29, 2017



          Max O. Cogburn Jr. Judge.

         THIS MATTER is before the Court on review of a Memorandum and Recommendation issued in this matter. In the Memorandum and Recommendation, the magistrate judge advised the parties of the right to file objections within 14 days, all in accordance with 28, United States Code, Section 636(b)(1)(c). While no objections have been filed within the time allowed, plaintiffs filed a “Reply to Response in Opposition” (#25), which addresses arguments made by defendants to the Honorable Dennis L. Howell, United States Magistrate Judge. The Court has fully considered that filing. For the reasons that follow, the Court affirms the proposed dismissals.


         I. Applicable Standard of Review

         The Federal Magistrates Act of 1979, as amended, provides that “a district court shall make a de novo determination of those portions of the report or specific proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). However, “when objections to strictly legal issues are raised and no factual issues are challenged, de novo review of the record may be dispensed with.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Similarly, de novo review is not required by the statute “when a party makes general or conclusory objections that do not direct the court to a specific error in the magistrate judge's proposed findings and recommendations.” Id. Moreover, the statute does not on its face require any review at all of issues that are not the subject of an objection. Thomas v. Arn, 474 U.S. 140, 149 (1985); Camby, 718 F.2d at 200. Nonetheless, a district judge is responsible for the final determination and outcome of the case, and accordingly the Court has conducted a careful review of the magistrate judge's recommendation.

         II. Discussion

         A. Background

         As to the recommendation concerning the corporate defendants Ocwen Loan Servicing, LLC, and Mortgage Electronic Registration Systems, Inc. (hereinafter “the corporate defendants”), the recommended dismissal is based on Judge Howell's conclusion that the pro se plaintiffs did not comply with the first Order requiring service of defendants within the time provided and for failure to comply with the Show Cause Order. Specifically, after defendants filed, a Motion to Dismiss under Rule 12(b)(5) and plaintiffs responded by seeking leave to amend and to “re-serve, ” Judge Howell held as follows:

Upon a review of the record and the relevant legal authority, including Rule 15 of the Federal Rules of Civil Procure, the Court GRANTS Plaintiffs leave to amend their Complaint and an extension of time to perfect service of process on Defendants. The Court DIRECTS Plaintiffs that they shall have ten (10) days from the entry of this Order to amend their Complaint if they decide to do so. Plaintiffs shall have thirty (30) days from the entry of this Order to perfect service on Defendants.

Order (#8) at 2. Plaintiffs filed their Amended Complaint (#9) on September 13, 2016, by delivering it to the Clerk of Court in Asheville.[1]

         After review of the pleadings, the Court agrees with Judge Howell that plaintiff have failed to perfect service on the corporate defendants at any point in this litigation. Service of a party is “perfected” when a properly executed “proof of service” is filed with the court in accordance with Rule 4(1), therein showing that plaintiffs served the defendant in accordance with Rule 4(h). Even after Judge Howell allowed plaintiffs additional time to serve their Amended Complaint, it was apparent that proper service had not been made. Rather than recommend dismissal at that point, Judge Howell allowed plaintiffs a further opportunity to show compliance by entering a Show Cause Order (#12), which directed them to explain why they had not fully complied with the previous Order. Defendants timely filed a “Response to Order to Show Cause” (#13) and therein argued why the action should be dismissed.

         In responding to the Show Cause Order, plaintiffs filed two documents, which the Court considers to be certificates or proofs of service (#15 and #16). The first Proof of Service (#15) appears to show service of Christina Trust. The second Proof of Service (#16) indicates that a private process server served a legal assistant at the law firm representing the corporate defendants on January 11, 2017. Plaintiffs also filed a Response (#19) and also explained that they would have served the corporate defendants' lawyers earlier, but they moved their offices.

         B. Dismissal of Christina Trust

         While labeled as a Response (#19), Judge Howell correctly determined that such pleading contained a Rule 41 request for voluntary dismissal by plaintiffs of defendant Christina Trust. Judge Howell recommends that such request be allowed. After such careful review, the Court determines that the recommendation of the magistrate judge is fully consistent with and supported by current law. Further, the brief factual background and recitation of issues is supported by the applicable ...

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