United States District Court, D. Maryland
Xinis United States District Judge.
before the Court is Plaintiffs' motion for extension of
time to complete service of the summonses (ECF No. 4),
Defendant Brock & Scott's motion to dismiss (ECF No.
8), and a separate motion to dismiss filed by the remaining
Defendants HSBC Bank USA, N.A.; Ocwen Loan Servicing, LLC;
Nomura Credit and Capital, Inc.; Nomura Holdings, Inc.; and
Federal Home Loan Mortgage Corporation (“Freddie
Mac”) (ECF No. 18). Based on the plain language of Rule
4(m) of the Federal Rules of Civil Procedure and this
Circuit's precedent, the Court will grant both motions to
dismiss without prejudice. Additionally, the Court will deny
Plaintiffs' motion for extension of time pursuant to Rule
6(b) of the Federal Rules of Civil Procedure.
Vincent Akakpo and Ranatu-Smythe Macauley filed their
Complaint on April 12, 2016, alleging various fraud-related
claims against the Defendants in connection with the
initiation of a foreclosure action against Plaintiffs'
property located in Upper Marlboro, Maryland. ECF No. 1. The
next day, the Court was notified that Plaintiffs had only
presented the Clerk with four of the six necessary summonses
for signature and seal. See ECF No. 2. On May 2,
2016, the Court issued an Order directing Plaintiffs to
complete the two additional summonses and promptly return
them to the Clerk. Id. at 2. The Order also
expressly warned Plaintiffs that “failure to comply
with this order and effect service of process within 90
days of initiating this lawsuit could result in the
dismissal of the complaint without prejudice.”
Id. (emphasis added). All six summonses were
returned to Plaintiffs for service on May 11, 2016. ECF No.
August 4, 2016, 114 days after filing their complaint,
Plaintiffs filed an “Emergency Motion for Extension of
Time to Complete Service of Summons.” ECF No. 4. In it,
Plaintiffs explain that they misunderstood the Court's
local rules for executing service of process, mistakenly
believing that time for executing service of process begins
to run only after the Clerk issues the summons to Plaintiffs.
Plaintiffs requested fourteen additional days to effect
service on the Defendants. Plaintiffs also executed service
upon Freddie Mac, HSBC Bank, and Brock & Scott 113 days
after the filing of their complaint. To date, Plaintiffs have
not filed an affidavit of service as to Ocwen Loan Servicing
and the Nomura entities.
Brock & Scott then filed its motion to dismiss pursuant
to Rule 4(m) of the Federal Rules of Civil Procedure because
Brock & Scott was not served within 90 days of the filing
of the complaint as Rule 4(m) requires. See ECF Nos.
8 & 10. On September 16, 2016, the remaining Defendants
filed a separate motion to dismiss in part pursuant to Rule
4(m) for untimely service on HSBC and Freddie Mac 113 days
after filing the complaint, and for failure to serve Ocwen
Loan Servicing and the Nomura Entities. See ECF No.
18-1 at 4 n.3.
4(m) requires a plaintiff to serve a defendant “within
90 days after the complaint is filed.” If the
defendants have not been served within this time frame,
“the court . . . must dismiss the action
without prejudice against that defendant.” Fed.R.Civ.P.
4(m) (emphasis added). However, “if the plaintiff shows
good cause for the failure, the court must extend the time
for service for an appropriate period.” Id.
cause” generally requires the Plaintiffs to demonstrate
that they exercised “reasonable diligence in trying to
effect service.” Jones v. Sears and Roebuck,
No. DKC-15-3092, 2016 WL 1696557, at *2 (D. Md. Apr. 28,
2016). Circumstances amounting to good cause may be
“where a defendant is evading service; where the
plaintiff experienced difficulty in obtaining a
defendant's proper address; where court staff misdirected
a pro se plaintiff as to the appropriate procedure
for service; or where plaintiff was unaware of the defect in
service until after the deadline expired.” Id.
(citing Hoffman v. Balt. Police Dep't, 379
F.Supp.2d 778, 786 (D. Md. 2005)). “The common thread
amongst all of these examples is that the interference of
some outside factor prevented the otherwise-diligent
plaintiff from complying with the rule.” Tenenbaum
v. PNC Bank Nat. Ass'n, No. DKC 10-2215, 2011 WL
2038550, at *4 (D. Md. May 24, 2011) (citing Burns &
Russell Co. of Baltimore v. Oldcastle, Inc., 166
F.Supp.2d 432, 439 n.9 (D. Md. 2001)).
or neglect of counsel, ” however, will not suffice to
satisfy the standard of “good cause.”
Braithwaite v. Johns Hopkins Hosp., 160 F.R.D. 75,
77 (D. Md. 1995). Moreover, “'[p]ro
se status . . . is insufficient to establish good cause,
even where the pro se plaintiff mistakenly believes that
service was made properly.”' Tann v.
Fisher, 276 F.R.D. 190, 193 (D. Md. 2011) (quoting
Hansan v. Fairfax Cnty. Sch. Bd., 405 F. App'x
793, 794 (4th Cir. 2010)).
March 6, 2017, the Court issued an Order to Plaintiffs
directing them to show good cause for their failure to effect
timely service. See ECF No. 26. Plaintiffs attempted
to respond, but the pleading was rejected because it did not
include an original signature as required by this Court's
Local Rules. See ECF No. 27. Nonetheless, the Court
notes that Plaintiffs principally contend that good cause
exists because the statute of limitations may bar refiling of
the claims. The Court will address this argument and
Plaintiff's arguments raised in response to
Defendants' motions to dismiss.
bottom, the only justification Plaintiffs offer for failing
to effect timely service is their misunderstanding of the
Court's Local Rules and the Court's instructions to
pro se litigants. Their motion for extension of
time, notably filed twenty-three days after the time for
serving the Defendants expired, states that “Plaintiffs
misapprehended the Court's local procedure as explained
by the Clerk with regard to the issuance of summonses in
pro se cases.” ECF No. 4 at 1. Maryland Local
Rule 103.2(d) states:
To ensure a summons is “properly completed” under
Fed.R.Civ.P. 4(b), the Clerk shall not issue a summons to any
self-represented litigant without first obtaining an order
from the Court authorizing issuance of the summons.
their response to Brock & Scott's motion to dismiss,
Plaintiffs also argue that the guidance provided by this
Court suggests that prior to the filing of a complaint by a
pro se litigant, the Court would review the
complaint and approve it before the complaint would be
accepted for filing. ECF No. 16 at 2-6. Plaintiffs cite the
Once a case is opened, it is sent to the assigned judge for
his or her review. The judge will look at any motions filed
with the complaint and frequently will look at the complaint
to see if it contains all the necessary information. A judge
may require ...