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Akakpo v. HSBC Bank USA, N.A.

United States District Court, D. Maryland

March 20, 2017

HSBC BANK USA, N.A. et al., Defendants.


          Paula Xinis United States District Judge.

         Pending 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.

         Plaintiffs 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. 3.

         On 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.

         Defendant 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.

         Rule 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.

         “Good 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)).

         “[I]nadvertence 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)).

         On 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.

         At 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.

         In 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 following instruction:

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 ...

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