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Turner v. Lowden

United States District Court, Fourth Circuit

October 15, 2013

RODEL R. TURNER, Plaintiff,
v.
JACOB LOWDEN, et al., Defendants.

MEMORANDUM OPINION

RICHARD D. BENNETT, District Judge.

Pending before this Court are (1) Defendant Bank of America's Motion to Set Aside Entry of Default and for Leave to Respond to the Complaint (ECF No. 11) and (2) Defendant Bank of America's Motion to Dismiss (ECF No. 12). These motions assert that the pro se Plaintiff Turner failed to properly serve Bank of America and that he has failed to adequately state a cause of action. The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2011). For the reasons that follow, Defendant Bank of America's Motion to Set Aside Entry of Default and for Leave to Respond to the Complaint is GRANTED. For similar reasons, Defendant Bank of America's Motion to Dismiss (ECF No. 12) is also GRANTED and this case is DISMISSED WITHOUT PREJUDICE.

BACKGROUND

In ruling on a motion to dismiss, the factual allegations in the plaintiff's complaint must be accepted as true and those facts must be construed in the light most favorable to the plaintiff. Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Moreover, a pro se litigant's complaint should not be dismissed unless it appears beyond doubt that the litigant can prove no set of facts in support of his claim that would entitle him to relief. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).

Plaintiff Ridel R. Turner ("Plaintiff") filed this action against Jacob Lowden ("Mr. Lowden") and Bank of America[1] on May 4, 2012. See generally Compl. The claims in the Complaint appear to relate to a residential home loan that Plaintiff alleges Defendants originated and serviced. See Compl. at 5.[2] While Plaintiff's Complaint is not structured into distinct counts, Plaintiff appears to make claims for breach of contract and unjust enrichment.[3] See id. On May 4, 2012, this Court entered an Order granting Plaintiff's Motion for Leave to Proceed in Forma Pauperis (ECF No. 3) and also directing Plaintiff to provide information to the United States Marshall Service (the "U.S. Marshalls") so that the U.S. Marshalls could serve Defendants. See Order, May 14, 2012, ECF No. 3.

Despite the Court's suggestion that Plaintiff check with the Maryland State Department of Assessments and Taxation to determine whether Bank of America had a resident agent in Maryland, Plaintiff instead gave the U.S. Marshalls the address of "9700 Bissonnet Street, Suite 1500, Houston Texas 77036" for Bank of America.[4] The U.S. Marshall Service then sent the summons and Complaint to the Bissonnet Street address where it was signed for and received by some unknown entity or person. See United States Marshall Service Process Receipt and Return, ECF No. 5. The 9700 Bissonnet Street address, however, is not the address of Bank of America's registered agent in Texas, nor is it an address listed on file with the State Department of Assessments and Taxation.

In a letter received by the Court on March 21, 2013 (ECF No. 8), Plaintiff requested entry of default against Bank of America. On March 27, 2013, the Clerk of Court entered an Order of Default (ECF No. 9) against Bank of America.[5] Bank of America first became aware of the suit and subsequent entry of default on April 16, 2013 when Plaintiff walked into a Bank of America branch in Glen Burnie, Maryland and gave a branch employee a copy of the Order of Default.

On April 26, 2013, Bank of America filed its Motion to Set Aside Default and for Leave to Respond to the Complaint (ECF No. 11). On May 17, 2013, Bank of America also filed a Motion to Dismiss (ECF No. 12). Thereafter, on May 22, 2013, the court received two letters from Plaintiff (ECF Nos. 14, 15) appearing to contest Bank of America's efforts to dismiss the case and requesting that this Court enter default judgment. On May 31, 2013, however, this Court returned Plaintiff's letters due to Plaintiff's failure to provide a certificate of service pursuant to Local Rule 102 (D. Md. 2011) and Rule 5 of the Federal Rules of Civil Procedure (ECF Nos. 16, 17). Plaintiff then sent another letter to the Court, attaching a certified mail receipt.[6]

STANDARD OF REVIEW

I. Motion to Set Aside Default Pursuant to Rule 55(c).

Under Rule 55 of the Federal Rules of Civil Procedure, the entry of a default judgment is a two-step process. Rule 55(a) governs the initial step-the entry of default by the clerk of the court-which occurs "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise." The second step-default judgment-is entered by the court. See Rule 55(b). However, "[a] defendant's default does not automatically entitle the plaintiff to entry of a default judgment; rather, that decision is left to the discretion of the court." See Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001).

Moreover, pursuant to Rule 55(c), the "Court may set aside an entry of default for good cause shown."[7] Fed. R. Civ. Proc. 55(c). The United States Court of Appeals for the Fourth Circuit has "repeatedly expressed a strong preference that, as a general matter, defaults be avoided and that claims and defenses be disposed of on their merits." Colleton Preparatory Acad., Inc. v. Hoover Universal, Inc., 616 F.3d 413, 417 (4th Cir. 2010). When addressing a Rule 55(c) motion to set aside a default, this Court considers the following factors:

[1] whether the moving party has a meritorious defense, [2] whether it acts with reasonable promptness, [3] the personal responsibility of the defaulting party, [4] the prejudice to the party, [5] whether there is a history of dilatory action, and [6] the availability of sanctions less drastic.

Payne ex rel. Estate of Calzada v. Brake, 439 F.3d 198, 204-05 (4th Cir. 2006). Finally, motions pursuant to Rule 55(c) are left "largely within the ...


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