United States District Court, W.D. North Carolina, Asheville Division
Cogburn Jr. Judge.
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
Applicable Standard of Review
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
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.
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.
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.
Dismissal of Christina Trust
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