UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) M. NAWAZ RAJA, et al., ) ) Plaintiffs, ) ) v. ) No. 16-cv-0511 (KBJ) ) FEDERAL DEPOSIT INSURANCE ) CORPORATION, et al., ) ) Defendants. ) )
MEMORANDUM OPINION AND ORDER PARTIALLY ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION REGARDING SERVICE
Pro se Plaintiffs, a married couple, maintain that their 2006 home loan
refinancing was unlawfully procured, and that subsequent attempts to foreclose on their
home were therefore illegal. (See Compl., ECF No. 1, ¶¶ 39, 193, 204; Pls.’ Resp. to
Order to Show Cause, ECF No. 5, at 1.) On March 17, 2016, Plaintiffs filed the instant
lawsuit against 18 defendants (primarily banks, along with a government regulator and
an individual), asserting nine counts, including Truth in Lending Act violations, breach
of contract, fraud, and unjust enrichment. (See generally Compl.) Since the filing of
the complaint, Plaintiffs have attempted to effect service of process on the defendants
in various ways, and Magistrate Judge Deborah Robinson—to whom this Court
randomly referred the matter for full case management—has considered the parties’
service-related arguments on at least two separate occasions.
Before this Court at present is Magistrate Judge Robinson’s Report and
Recommendation (“R & R”) dated August 16, 2017, which finds that Plaintiffs have
1 failed to demonstrate proper service of process upon any of the defendants, and
recommends that 16 of the 18 Defendants be dismissed from the action on that basis.
(See R & R, ECF No. 44, at 2–3.) 1 Plaintiffs have filed a timely objection, in which
they contest the R & R’s finding that Defendants “were not served as of the June 16,
2017 deadline” (id. at 1) and ask this Court to “find that [D]efendants have been timely
and properly served” (Pls.’ Objs. to R & R (“Pls.’ Objs.”), ECF No. 46, at 20), so that
this case can continue.
This Court need not go that far. For the reasons explained below, the Court
agrees with the Magistrate Judge that there is no factual basis for a finding that
Plaintiffs effected service properly by the court-ordered deadline, but this Court also
finds that Plaintiffs (who are proceeding pro se) were never given a clear explanation of
why their prior attempts at service were deemed deficient, and they were not provided
the customary notice of the consequences of their failure to effect proper service upon
Defendants. Therefore, the Court will ADOPT the R & R’s findings about service, but
will DECLINE to dismiss the case as the Magistrate Judge recommends, and will grant
Plaintiffs one more opportunity to effect proper service.
I. BACKGROUND
Plaintiffs filed their complaint in this matter on March 17, 2016 (see Compl.),
and filed service affidavits three months later, on June 17, 2016 (see Affs. of Service,
ECF No. 3). Plaintiffs filed a Motion for Entry of Default on November 29, 2016, after
it appeared that all of the defendants had failed to respond to the complaint timely.
1 The Report and Recommendation is attached hereto as Appendix A. Page-number citations to the Report and Recommendation, as well as the documents that the parties have filed, refer to the page numbers that the Court’s electronic filing system automatically assigns.
2 (See Pls.’ Mot. for Entry of Default, ECF No. 7; see also Min. Order of Nov. 8, 2016).
On May 24, 2017, Magistrate Judge Robinson convened a status conference to address
the Motion for Entry of Default, during which she heard arguments from both Plaintiff
M. Nawaz Raja and counsel for 11 of the defendant-entities, who had entered a limited
appearance for the sole purpose of contesting service. (See Min. Order of May 25,
2017.) 2 The Magistrate Judge did not rule from the bench regarding the service dispute
during the status conference, nor did she provide any oral statement regarding whether
or not Plaintiffs’ process servers had effectively served Defendants. Rather, the dispute
was resolved via a Minute Order that stated simply that “the undersigned finds that
Defendants have not been served.” (Id.) The Minute Order further denied Plaintiffs’
Motion for Entry of Default, and set a new deadline of June 16, 2017, by which
Plaintiffs “shall effect service of process upon all Defendants.” (Id.)
On July 19, 2017, the 11 Defendants that had appeared at the status conference
filed a notice that informed the Court that they had not been properly served with
process as of the June 16, 2017 deadline. (See Defs.’ Notice of Failure to Serve
(“Eleven Defs.’ Notice”), ECF No. 35.) Two other Defendants also filed a notice of
failure to serve. (See Defs. IndyMac Venture and IMB Holdco’s Notice of Failure to
Serve, ECF No. 37.) Plaintiffs responded by filing rebuttals to both notices, detailing
their methods of service and arguing that Defendants had, in fact, been properly served.
(See Pls.’ Rebuttals to Notices of Failure to Serve, ECF Nos. 39 & 40). Defendants
IndyMac ABS, Inc. and IndyMac MBS, Inc. filed a response to Plaintiffs’ rebuttal (see
2 Although the May 25, 2017 Minute Order states that “counsel for twelve Defendants” appeared at the status conference, a review of the record suggests that counsel for 11 Defendants appeared, which is also the number subsequently indicated in the Report and Recommendation. (See R & R, at 1 (discussing “the eleven Defendants who appeared at the status conference”).)
3 Resp. to Rebuttal to Alleged Notice of Failure to Serve, ECF No. 42), as did the Federal
Deposit Insurance Corporation (“FDIC”), as receiver for both IndyMac Bank, F.S.B.
and IndyMac Federal Bank (see FDIC Defs.’ Resp. to Pls.’ Rebuttal to Alleged Failure
to Serve, ECF No. 43).
On August 16, 2017, Magistrate Judge Robinson issued the instant Report and
Recommendation. (See R & R.) As mentioned above, the R & R finds that Plaintiffs
failed to meet the court-ordered deadline to demonstrate effective service of process,
and as a result, recommends that the case be dismissed as to the 11 Defendants “who
appeared at the status conference and subsequently filed a notice” 3 and also the five
Defendants who “have not appeared, but as to whom Plaintiffs have failed to effect
service.” 4 (Id. at 2, 3.) As cause for the dismissal recommendation, the Magistrate
Judge states that Plaintiffs had filed “no return of service affidavit relating to any
Defendant” as of the date of the R & R, and that “[t]he efforts described by Plaintiffs
[in their rebuttal filings] cannot be said to comply with the requirements for service
enumerated in the Federal Rules.” (Id. at 2, 2 n.2.) 5
3 These Defendants are: Federal Deposit Insurance Corporation; OneWest Bank; IndyMac Mortgage Services; IndyMac MBS, Inc.; IndyMac ABS, Inc.; Deutsche Bank National Trust Company; Deutsche Bank AG; Deutsche Bank Securities, Inc.; Mortgage Electronic Registration Systems, Inc.; Merscorp, Inc.; and Merscorp Holdings, Inc. (See R & R at 2.) The R & R lists Mortgage Electronic Registration Systems twice and omits Merscorp Holdings, Inc., but a review of the record indicates that Merscorp Holdings, Inc. is one of the 11 Defendants that appeared at the status conference and also filed a notice of failure to serve. (See FTR Gold Recording of May 24, 2017 Status Conf.; Eleven Defs.’ Notice.) 4 These Defendants are: IndyMac Bank F.S.B., IndyMac Federal Bank, IndyMac INDX 2006-AR8, CIT Bank N.A., and Mike Perry. (See R & R at 3.) 5 The R & R did not make any recommendation as to the two remaining Defendants in this case— IndyMac Venture, LLC and IMB Holdco, LLC—apparently because those defendants had “moved for an extension of time . . . to answer or otherwise respond to Plaintiffs’ Complaint” at the time that the R & R was issued. (R & R at 1 n.1.) These Defendants subsequently filed a motion to dismiss (after the R & R issued), and in that motion these Defendants argued, inter alia, that the case should be dismissed for insufficient service of process under Rule 12(b)(5). (See Mem. in Supp. of Defs. IndyMac Venture, LLC and IMB HoldCo, LLC’s Mot. to Dismiss, ECF No. 45-1, at 9–10.)
4 Plaintiffs filed a timely objection to the R & R on August 29, 2017 (see Pls.’
Objs.), to which 11 Defendants have responded (see Opp’n to Pls.’ Objs. to R & R, ECF
No. 48; see also Pls.’ Rebuttal to IndyMac ABS and IndyMac MBS’s Alleged Joinder
Opp’n to Pls.’ Obj. to R & R (“Pls.’ Reply”), ECF No. 50). Although Plaintiffs’
arguments are at times difficult to follow, their filing specifically recounts the steps
they took to serve Defendants prior to the Magistrate Judge’s service deadline, and
maintains that they did effect proper service, primarily by directing the summonses to
the counsel of record for the defendants. (See Pls.’ Objs. at 1–9, 12–20.)
Consequently, Plaintiffs ask this Court to overrule the R & R by “find[ing] that
defendants have been timely and properly served[]” or “in the alternative[,] giv[ing]
additional time of 60 days for Plaintiffs to effect service, with cost assessed on
defendants.” (Id. at 20.)
II. DISCUSSION
The Federal Rules of Civil Procedure (“FRCP”) provide that “[u]nless service is
waived, proof of service must be made to the court.” Fed. R. Civ. P. 4(l)(1). “Except
for service by a marshal or deputy marshal,” a plaintiff must provide proof of service
through an affidavit that the process server provides. Id. Service must be made within
90 days after the complaint is filed, and if a plaintiff fails to effect proper service
within this time, “the court—on motion or on its own after notice to the plaintiff—must
dismiss the action without prejudice against that defendant or order that service be
made within a specified time.” Fed. R. Civ. P. 4(m). However, “if the plaintiff shows
good cause for the failure, the court must extend the time for service for an appropriate
period.” Id.
5 The Magistrate Judge in this case determined that Plaintiffs had failed to provide
proof of service as Rule 4(l) requires by the court-ordered deadline of June 16, 2017,
and recommended dismissal of Plaintiffs’ legal action against most of the defendants as
a result. (See R & R at 2–3.) When a timely objection is made to a magistrate judge’s
findings and recommendations, this Court reviews the portions of the R & R to which
an objection is made de novo, see M.G. v. District of Columbia, 246 F. Supp. 3d 1, 4
(D.D.C. 2017) (citing Fed. R. Civ. P. 72(b)), but the Court need not entertain new
evidence, and may make its determination “based solely on the record developed before
the magistrate judge,” LCvR 72.3(c).
This Court has conducted its own de novo review of the record before Magistrate
Judge Robinson, and it concurs with her findings, but will give Plaintiffs another
chance to effect proper service, as explained below.
A. Plaintiffs Have Failed To Comply With The FRCP’s Service Requirements
It is crystal clear that Plaintiffs have not, in fact, filed the required proof of
service with respect to their second attempt at serving the defendants, either by the
deadline of June 16, 2017, or thereafter. (See Min. Order of May 25, 2017.) The
Federal Rules require the filing of an “affidavit” as proof that a defendant has been
properly served unless service has been waived, Fed. R. Civ. P. 4(l)(1), and in the
instant case, the docket does not indicate that Plaintiffs filed any such affidavit since
the Magistrate Judge set the deadline by which Plaintiffs needed to make that showing.
Nor have Plaintiffs argued that they have “good cause for [this] failure[.]” Fed. R. Civ.
P. 4(m).
6 Instead, throughout their various rebuttal statements and notices, Plaintiffs have
repeatedly insisted that their various efforts to effect proper service of process on the
defendants should be deemed to suffice. (See generally Pls.’ Rebuttals to Notices of
Failure to Serve; Pls.’ Objs.; Pls.’ Reply.) Specifically, Plaintiffs have raised several
fact-bound objections to the R & R’s failure-to-serve finding, none of which provides
any basis for concluding that Defendants were actually properly served.
First, Plaintiffs argue that they properly served various Defendants by effecting
service of process on the named Defendants’ attorneys of record. (See Pls.’ Objs. at 1–
9, 12–20; see also id. at 5–6, 16 (maintaining that Plaintiffs received response letters
from some of the defense attorneys, which Plaintiffs say confirms that the summonses
were properly served); Pls.’ Reply at 2, 7 (same).) But under FRCP 4—which is the
applicable legal standard for effecting proper service—serving an attorney of record
who is not a designated agent of the defendant for the purpose of service does not
satisfy the service of process requirement. See Fed. R. Civ. P. 4(h)(1)(B) (stating that
service on a corporation can be made through delivering the summons “to an officer, a
managing or general agent, or any other agent authorized by appointment or by law to
receive service of process”); see also Fed. R. Civ. P. 4(i)(2) (stating that service on a
federal agency must be made by serving the United States and also the agency); Fed. R.
Civ. P. 4(e)(2) (stating that service on an individual can be accomplished by, inter alia,
“delivering a copy of [the summons and complaint] to an agent authorized by
appointment or law to receive service of process”). 6
6 To the extent that Plaintiffs rely on Rule 4(h)(1)’s cross-reference to Rule 4(e)(1) to support their argument that service on defense counsel is sufficient under the Federal Rules (see Pls.’ Objs. at 14– 15), Plaintiffs have failed to point to any applicable provision of state law that authorizes service on an individual defendant’s attorney when such counsel has not been designated as an agent to receive
7 To be sure, Federal Rule of Civil Procedure 5(b)(1) references service on an
attorney (see Pls.’ Objs. at 3, 7–9), but that rule pertains to the filing of papers “after
the original complaint,” Fed. R. Civ. P. 5(a)(1)(B) (emphasis added), and does not
apply to the complaint and summons that initiate a case, see Fed. R. Civ. P. 5(a)(1); see
also Rule 5(b)(1) (providing that “[i]f a party is represented by an attorney, service
under this rule must be made on the attorney unless the court orders service on the
party”). In other words, the serving and filing of pleadings and other papers in the
context of the litigation—which is governed by Rule 5—is distinct from Rule 4’s
requirements regarding the service of a summons and complaint upon a party, and
cannot be a basis on which to find that Defendants have been properly served under
Rule 4.
In this same vein, Plaintiffs are incorrect to insist that defendant counsel “should
be estopped from denying service on behalf of their clients” because the parties “have
exchanged documents and correspondences” in this matter. (Pls.’ Objs. at 17.) In this
jurisdiction, actual notice is not a substitute for proper service on a party as Rule 4
directs. See Whitehead v. CBS/Viacom, Inc., 221 F.R.D. 1, 3 (D.D.C. 2004)
(“[P]laintiff cannot fulfill his burden under Rule 4(h) by showing that defendant had
notice of the suit.”).
The fact that Defendants’ counsel allegedly acted in bad faith by “[leading]
Plaintiffs to believe that [counsel] would accept service on behalf of their clients” (Pls.’
process for that individual. See Fed. R. Civ. P. 4(h)(1)(A)(authorizing service on a corporation “in the manner prescribed by Rule 4(e)(1) for serving an individual”); Fed. R. Civ. P. 4(e)(1)(permitting service to be effected in a federal judicial district by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made”). Thus, Rules 4(h)(1) and 4(e)(1) do not plainly authorize the service-of-counsel process that Plaintiffs undertook here.
8 Objs. at 17), and/or that Plaintiffs proceeded in good faith by relying on the alleged
representations of certain defendant counsel “with whom[] they have been in active
litigation for several years” (id. (emphasis omitted) (quoting Opp’n to Pls.’ Mot. for
Default J. and Cross Mot. for a Stay on Behalf of Defs. IndyMac ABS, Inc. and
IndyMac MBS, Inc., ECF No. 8, at 2)), is entirely beside the point. Regardless, it is
undisputed that the defense counsel in question “is not authorized to accept service on
behalf of” his clients (id. at 5–6), and the Federal Rules make clear that such
authorization is what matters when it comes to effecting proper service.
Plaintiffs are also mistaken when they argue that they complied with the Federal
Rules with respect to service on Defendant FDIC, because they “served [the] complaint
and summons to the US Attorney General, US Attorney, Civil Process Clerk” under
“Rule 4(i)(A)[.]” (Id. at 1, 2; see also id. at 15 (arguing that “Rule 4(i)(A) allows
service to be proper [by] (i) deliver[ing] a copy of the summons and of the complaint to
the United States attorney for the district where the action is brought” (second
alteration in original)).) 7 To begin with, Plaintiffs have not filed any affidavits that
prove this purported service, as Rule 4(l) requires. Moreover, and in any event, the rule
that Plaintiffs rely upon—Rule 4(i)(1)(A)—governs the process for service on the
United States, not service upon an agency such as the FDIC. Compare Fed. R. Civ. P.
4(i)(1)(A) with 4(i)(2).
Plaintiffs’ contention that at least the 11 Defendants whose attorneys entered a
limited appearance in this matter should have been deemed timely and properly served
(see Pls.’ Objs. at 19) fares no better. The record clearly indicates that the various
7 The Federal Rules do not contain any “Rule 4(i)(A)”; the language that Plaintiffs quote appears in Rule 4(i)(1)(A).
9 attorneys for those Defendants “entered their appearances for the limited purpose of
contesting service of process” at the status conference of May 24, 2017. (Min. Order of
May 25, 2017; see also FTR Gold Recording of May 24, 2017 Status Conf.) Moreover,
it is well established in this jurisdiction that a defendant’s “appearance in court, without
more, is insufficient to satisfy the plaintiff’s burden of proving that he properly served
the [defendant].” Candido v. District of Columbia, 242 F.R.D. 151, 160 (D.D.C. 2007).
As to Plaintiffs’ suggestion that their private process server properly effected
service on the five Defendants who did not appear at the hearing to contest service
(hence, their failure to file any service-related notice) (see Pls.’ Objs. at 12), 8 Plaintiffs
ignore the applicable burdens, and seek to turn the rule that governs the service
obligation on its head. Courts do not assume that service has been properly effected
unless they hear otherwise; the burden of establishing that service has been
accomplished rests with Plaintiffs, and Federal Rule of Civil Procedure 4(l) plainly
requires the filing of return of service affidavits in the absence of waiver—which
Plaintiffs have not done, either by the deadline the Magistrate Judge set, or in the more
than seven months that have since passed.
Finally, none of Plaintiffs’ specific attacks on the Magistrate Judge’s procedures
and statements of fact regarding the service issue persuades this Court that the R & R’s
findings are erroneous. For example, Plaintiffs appear to maintain that Magistrate
Judge Robinson improperly took into account certain procedurally defective filings by
certain Defendants (see Pls.’ Objs. at 9–12), but Plaintiffs have not shown that the
R & R’s dismissal recommendation actually relies upon the documents that Plaintiffs
8 These five Defendants are: IndyMac Bank F.S.B., IndyMac Federal Bank, IndyMac INDX 2006-AR8, CIT Bank N.A., and Mike Perry. (See R & R at 3; Pls.’ Objs. at 12.)
10 believe were improperly filed, and it is clear to this Court that the finding that
“Plaintiffs have filed no return of service affidavit relating to any Defendant” (R & R at
2) is entirely independent of any allegedly improper notices or briefs by the defendants.
Nor is it problematic that the R & R states that “eleven” Defendants formally filed lack-
of-service notices (R & R at 1; see also Pls.’ Objs. at 9–10 (insisting that only two of
the defendants actually filed such a notice)), because a notice filed on behalf of 11
listed Defendants is exactly what the record here contains (see Eleven Defs.’ Notice, at
3).
This all means that Plaintiffs’ objections to the R & R’s finding that service has
not been properly effected are not well founded, and this Court is confident that, at least
in this regard, Magistrate Judge Robinson’s R & R is correct. This Court further finds
that Plaintiffs have failed to demonstrate “good cause for the[ir] failure” to serve
Defendants in accordance with the Federal Rules. Fed. R. Civ. P. 4(m). Indeed, rather
than providing any grounds for this Court to excuse the service defects, Plaintiffs have
mounted a vigorous defense of their service-related efforts in a manner that clearly
stems from “[m]istake . . . or ignorance of the rules of procedure[,]” which “does not
suffice to establish good cause.” Whitehead, 221 F.R.D. at 3.
B. This Court Will Not Dismiss The Case Against Any Defendant On Lack-Of-Service Grounds At This Time, Because Plaintiffs Did Not Have Adequate Pre-Dismissal Notice Of Their Service Deficiencies Or The Consequences Of Failing To Effect Proper Service
All that said, this Court is keenly aware that Plaintiffs are proceeding with
respect to this action pro se, and thus must be “allowed more latitude than litigants
represented by counsel to correct defects in service of process and pleadings.” Moore
v. Agency for Int’l Dev., 994 F.2d 874, 876 (D.C. Cir. 1993). As a matter of equity, if
11 not law, plaintiffs such as these (who have no legal training and little guidance in
navigating the legal system) should be specifically notified of the defects in their filings
and the mistakes that pervade their attempts to comply with the Federal Rules of Civil
Procedure before their cases are dismissed, so that they can have a fair opportunity to
correct such unwitting errors. Cf. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992)
(recognizing that pro se plaintiffs must be given a “reasonable opportunity” to contest a
motion for summary judgment, which “presupposes notice” of the requirements
(internal quotation marks omitted)); Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir.
1987) (holding that courts must “provide a pro se litigant with notice of the deficiencies
in his or her complaint” with “at least [] a few sentences explaining the deficiencies”
when providing an opportunity to amend the complaint). Moreover, as the D.C. Circuit
has recognized in the context of service by pro se plaintiffs, “[m]ere time to correct a
defect is not enough, if knowledge of the consequences of not making use of it is
wanting.” Moore, 994 F.2d at 876 (emphasis added) (internal quotation marks and
alteration omitted). Thus, although “courts do not need to provide detailed guidance to
pro se litigants[,]” it is equally clear that courts must “supply minimal notice of the
consequences of not complying with procedural rules.” Id. (citing Eldridge, 832 F.2d at
1136).
As far as this Court can tell, insufficient notice was provided in this case. First
of all, at the time that Plaintiffs’ initial service efforts were deemed unsuitable, the
Magistrate Judge did not provide any indication whatsoever regarding why she had
reached that determination. (See Min. Order of May 25, 2017; see also FTR Gold
Recording of May 24, 2017 Status Conf.) In the absence of any such explanation,
12 Plaintiffs proceeded to embark on an entirely different course of action with respect to
service ahead of the June 16, 2017 deadline, but ultimately, the Magistrate Judge again
provided little explication of the particular problems with Plaintiffs’ chosen process in
the context of the instant three-page R & R. Thus, it is no wonder that Plaintiffs’
written objections reflect significant confusion regarding how proper service must be
made—confusion that likely could have been avoided if the Magistrate Judge’s earlier
pronouncements had referenced the appropriate rule and explained why Plaintiffs’
myriad efforts to satisfy the Federal Rules were lacking.
There is also no indication in the record that the Magistrate Judge specifically
warned Plaintiffs about the consequences of failing to serve Defendants properly. (See
FTR Gold Recording of May 24, 2017 Status Conf.; Min. Order of May 25, 2017.) The
Magistrate Judge gave Plaintiffs additional time to effect service (see Min. Order of
May 25, 2017), and also issued a subsequent Supplemental Order advising Plaintiffs of
their general responsibility to respond to filings of the defendants (see Suppl. Order of
May 31, 2017), but the Supplemental Order does not touch upon service at all, much
less specifically notify Plaintiffs that their failure to effect service by the established
deadline might result in the dismissal of their case.
In the interest of fairness and in light of Plaintiffs’ status as pro se litigants, this
Court finds it prudent to provide Plaintiffs with one more opportunity to (1) closely
evaluate the orders and statements of the Magistrate Judge and this Court, and (2) effect
proper service for all of the defendants in this case, by serving them in compliance with
the requirements of Rule 4 of the Federal Rules of Civil Procedure. See Henderson v.
United States, 517 U.S. 654, 658 n.5 (1996) (noting that Rule 4(m) “permits a district
13 court to enlarge the time for service even if there is no good cause shown” (internal
quotation marks omitted)); Moore, 994 F.2d at 876–77 (explaining that courts can
permit pro se litigants the opportunity to perfect service of process, and remanding the
case for that purpose). This will be the last chance that Plaintiffs have to address the
service requirement, and their failure to do so can—and most likely will—result in the
dismissal of this case.
III. ORDER
For the reasons stated above, it is hereby
ORDERED that the findings of the R & R are ADOPTED (over Plaintiffs’
objections), but the Court will not (yet) implement the R & R’s recommendation.
Plaintiffs are hereby provided with one additional opportunity to effect proper service.
Accordingly, it is
FURTHER ORDERED that Plaintiffs shall serve all Defendants, at their own
expense, and file with the Court proof that they have effected service of process on all
Defendants by April 13, 2018. 9 Plaintiffs’ attention is directed to Federal Rule of Civil
Procedure 4. See, e.g., Fed. R. Civ. P. 4(c) (explaining that “[a]ny person who is at
least 18 years old and not a party may serve a summons and complaint”); Fed. R. Civ.
P. 4(e) (describing how to serve an individual defendant within a judicial district of the
United States); Fed. R. Civ. P. 4(h) (describing how to serve a corporation, partnership,
or association); Fed. R. Civ. P. 4(i)(2) (describing how to serve U.S. agencies,
corporations, and officers or employees sued in an official capacity); Fed. R. Civ. P.
9 Plaintiffs ask for the cost of service to be “assessed on defendants” (Pls.’ Objs. at 20), but they have shown no basis for such cost-shifting, either factually in the circumstances of this case nor in the law.
14 4(l) (explaining that proof of service must be made by the server’s affidavit except for
service by a U.S. marshal or deputy marshal).
If Plaintiffs fail to file proper proof of service by April 13, 2018, this Court will
dismiss this case without prejudice. See Fed. R. Civ. P. 4(m) (requiring the dismissal of
a case where the plaintiff has not timely served within 90 days of filing suit or within
the time specified by the court). Nothing in this Order affects the Court’s prior referral
of this matter to Magistrate Judge Robinson for full case management.
SO ORDERED.
DATE: February 12, 2018 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge
15 Appendix A Case 1:16-cv-00511-KBJ-DAR Document 44 Filed 08/16/17 Page 1 of 3
M. NAWAZ RAJA, et al., Plaintiffs, v. Civil Action No. 16-511 KBJ/DAR FEDERAL DEPOSIT INSURANCE CORPORATION, et al.,
Defendants.
REPORT AND RECOMMENDATION
On March 17, 2016, Plaintiffs filed a complaint against eighteen Defendants for claims
arising from the refinancing of a home mortgage. See Complaint (ECF No. 1). Approximately
thirteen months later, this action was referred to the undersigned United States Magistrate Judge
for full case management. 04/18/2017 Minute Order and Referral. At a status conference held on
May 25, 2017, attended by Plaintiff M. Nawaz Raja and counsel for eleven of the Defendants, the
undersigned found that Plaintiffs had not served any of the Defendants with a summons and copy
of the complaint. See 05/25/2017 Minute Order. The undersigned subsequently ordered Plaintiffs
to effectuate service on all Defendants by no later than June 16, 2017. Id.
The eleven Defendants who appeared at the status conference have since filed a notice, in
which they advised that they were not served as of the June 16, 2017 deadline set by the
undersigned. See Notice of Failure to Serve (ECF No. 35). 1
1 On July 6, 2017, two Defendants, INDY MAC VENTURE LLC and IMB HOLDCO LLC, moved for an extension of time until August 28, 2017, to answer or otherwise respond to Plaintiffs’ Complaint. See Motion for Extension of Time to File Answer (ECF No. 34). The undersigned granted said motion. 07/17/2017 Minute Order. Appendix A Case 1:16-cv-00511-KBJ-DAR Document 44 Filed 08/16/17 Page 2 of 3 Raja, et al. v. FDIC, et al. 2
As of this date, the Plaintiffs have filed no return of service affidavit relating to any
Defendant, as required by Federal Rule of Civil Procedure 4(l)(1). 2
Upon consideration of the chronology of this action, and of Rule 4 of the Federal Rules of
Civil Procedure, it is, this 16th day of August, 2017, hereby
RECOMMENDED that this action be DISMISSED as to the eleven Defendants who
appeared at the status conference and subsequently filed a notice:
(1) FEDERAL DEPOSIT INSURANCE CORPORATION
(2) ONE WEST BANK N.A.
(3) INDY MAC MORTGAGE SERVICES
(4) INDY MAC MBS, INC
(5) INDY MAC ABS INC
(6) DEUTSCHE BANK NATIONAL TRUST COMPANY
(7) DEUTSCHE BANK SECURITIES INC
(8) MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.
(9) MERSCORP, INC.
(10) DEUTSCHE BANK AG
(11) MORTGAGE ELECTRONIC REGISTRATION SYSTEMS
2 The undersigned has reviewed Plaintiffs’ memoranda, in which they assert that service was made. See Plaintiffs’ Rebuttal to Alleged Notice of Failure to Serve (ECF Nos. 39, 40); Plaintiffs’ Opposition to INDY MAC VENTURE, LLC and IMB HOLDCO, LLC’s Second Motion for Extension (ECF No. 41). The efforts described by Plaintiffs, however, cannot be said to comply with the requirements for service enumerated in the Federal Rules. See Fed. R. Civ. P. 4. Appendix A Case 1:16-cv-00511-KBJ-DAR Document 44 Filed 08/16/17 Page 3 of 3 Raja, et al. v. FDIC, et al. 3
It is FURTHER RECOMMENDED that this action be DISMISSED as to the five
Defendants who have not appeared, but as to whom Plaintiffs have failed to effect service: 3
(1) INDY MAC BANK FSB
(2) INDY MAC FEDERAL BANK
(3) INDY MAC INDX 2006-AR8
(4) CIT BANK N.A.
(5) MIKE PERRY
Digitally signed by Deborah A. Robinson Date: 2017.08.16 15:55:27 -04'00'
DEBORAH A. ROBINSON United States Magistrate Judge
Within fourteen days, any party may file written objections to this report and recommendation. The objections shall specifically identify the portions of the findings and recommendations to which objection is made and the basis of each such objection. In the absence of timely objections, further review of issues addressed herein may be deemed waived.
3 See note 1, supra.