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Burns v. Ocwen Loan Servicing, L.L.C.

United States District Court, E.D. Michigan, Southern Division

January 9, 2018

TIMOTHY BURNS, Plaintiff,
v.
OCWEN LOAN SERVICING, L.L.C., et al., Defendants.

          Honorable Terrence G. Berg

          REPORT AND RECOMMENDATION TO DISMISS PLAINTIFF'S COMPLAINT AGAINST DEFENDANTS AMERIQUEST, AMC, NM/WF, ACC, AND CITIGROUP FOR FAILURE TO SERVE

          DAVID R. GRAND United States Magistrate Judge

         I. PROCEDURAL HISTORY

         On June 2, 2017, pro se Plaintiff Timothy Burns (“Burns”) initiated a lawsuit against ten defendants: Ocwen Loan Servicing, L.L.C. (“Ocwen”); Homeward Residential, Inc. (“Homeward”)[1]; Ameriquest Mortgage (“Ameriquest”); AMC Mortgage Service, Inc. (“AMC”); Norwest Mortgage/Wells Fargo (“NM/WF”); Jordan S. Bolton (“Bolton”); David A. Breuch (“Breuch”)[2]; Michelle K. Clark (“Clark”); ACC Capital Holding Corporation (“ACC”); and Citigroup Inc. (“Citigroup”). (Doc. #1).

         Although no proofs of service were ever filed on the docket, notices of appearance were filed on behalf of Defendants Ocwen, Homeward, Brach, Bolton, and Clark. (Docs. #5, #6, #7). Defendants Ocwen, Homeward, Brach, and Bolton filed dispositive motions, which this Court has recommended granting. (Doc. #27).

         Meanwhile, Defendants Ameriquest, AMC, NM/WF, ACC, and Citigroup had not answered or otherwise appeared in this action after more than 90 days had elapsed since Burns' complaint was filed, [3] and Burns had not filed a valid proof of service showing that these defendants were properly served with a summons and complaint.[4] Accordingly, on October 4, 2017, the Court issued an Order to Show Cause directing Burns to show cause, in writing, by October 25, 2017, why his complaint should not be dismissed without prejudice as to Defendants Ameriquest, AMC, NM/WF, ACC, and Citigroup because of his failure to timely serve them within 90 days of filing the complaint. (Doc. #29). The Court instructed Burns that he may satisfy his obligation under that order by properly serving these defendants by October 25, 2017, and filing a proper proof of service by that date. (Id.). Moreover, “Burns [was] expressly warned that his failure to timely and properly respond to [the] Order to Show Cause will result in a recommendation that his claims against Defendants Ameriquest, AMC, NM/WF, ACC, [and] Citigroup . . . be dismissed without prejudice.”[5] (Id. at 2-3) (emphasis in original).

         On October 30, 2017, Burns filed a “Motion to Show Cause” (Doc. #32), which the Court interpreted as Burns informing the Court that he did not receive a copy of the October 4, 2017 Order to Show Cause. (Doc. #33). The Court then issued a “Final Order to Show Cause, ” where it gave Burns an additional opportunity to file an appropriate response to its previous show cause order and reminded Burns of his responsibility under Local Rule 11.2 to promptly notify the Court of a change in address. (Id. at 3). In this second show cause order, Burns was given until November 27, 2017, to show cause, in writing, why his complaint should not be dismissed without prejudice as to Defendants Ameriquest, AMC, NM/WF, ACC, and Citigroup because of his failure to timely serve them within 90 days of filing the complaint. (Id.). Burns was told that he may satisfy his obligation under this order to show cause by properly serving these defendants by November 27, 2017, and filing a proper proof of service by that date. (Id.). The Court again “expressly warned [Burns] that his failure to timely and properly respond to this Final Order to Show Cause will result in a recommendation that his claims against Defendants Ameriquest, AMC, NM/WF, ACC, and Citigroup be dismissed without prejudice.” (Id.) (emphasis in original).

         Between November 6, 2017 and November 21, 2017, Burns filed five documents that appeared to be responses to the “Final Order to Show Cause.” (Docs. #36, #37, #38, #40, #41). In these documents, Burns provided evidence of unsuccessful mailing attempts - via certified mail - to the defendants. However, close inspection of these filings revealed that Burns had still not submitted valid proof of service showing that Defendants Ameriquest, AMC, NM/WF, ACC, and Citigroup were properly served with a summons and complaint. As to Ameriquest, Burns provided a photocopy of an envelope addressed to this defendant. (Doc. #36 at 8). This mailing was apparently returned to sender, with a handwritten note on the envelope that says “are not Amer[i]quest Mortgage.” (Id.). Burns also provided a copy of a form called “Summons and Complaint Return of Service” that was filled out by hand and indicates that service on Ameriquest was returned unexecuted because it was “[r]efused.” (Doc. #38 at 1; see also Doc. #37 at 1). Regarding AMC, Burns provided a photocopy of an envelope addressed to it that says it was returned to sender because of “insufficient address.” (Doc. #36 at 5). Meanwhile, a photocopy of an envelope possibly addressed to NM/WF (a label is covering the mailing address, but “No . . .” is written under the label) indicates that it was returned to sender, with the following explanation: “attempted - not known.” (Id. at 9). And a photocopy of an envelope addressed to ACC indicates that it was returned to sender because it was “refused.” (Id. at 6). None of these filings constitute a proper proof of service establishing that the particular defendant was actually served with a copy of the summons and complaint. Finally, no proof of mailings and/or service were provided by Burns regarding Citigroup.[6]

         Given that Burns is a pro se litigant and that he made numerous efforts to comply with the Court's “Final Order to Show Cause, ” the Court issued another “Final Order to Show Cause” on December 7, 2017, and gave Burns a third opportunity - now until January 5, 2017 - to show cause, in writing, why his complaint should not be dismissed without prejudice as to Defendants Ameriquest, AMC, NM/WF, ACC, and Citigroup because of his failure to timely serve them within 90 days of filing the complaint. (Doc. #43). Burns was again told that he may satisfy his obligation under this last Final Order to Show Cause “by properly serving these defendants by January 5, 2017, and filing a proper proof of service by that date.” (Id. at 4-5) (emphasis in original). He was advised that he must comply with the Federal Rules of Civil Procedure[7] in providing valid proof of service and was “expressly warned that his failure to timely and properly respond to this Second Final Order to Show Cause will result in a recommendation that his claims against Defendants Ameriquest, AMC, NM/WF, ACC, and Citigroup be dismissed without prejudice.” (Id. at 5) (emphasis in original).

         On December 14, 2017, Burns filed an “Answer to Final Show Cause.” (Doc. #44). In a section entitled “Proof of Servic[e]s to Defendan[ts], ” Burns included a copy of summonses for the following entities: Ocwen, Homeward, NM/WF (two copies of the same document), Wells Fargo Home Mortgage, and possibly Citigroup (the handwriting is hard to read). (Id. at 4-9). No. documents were provided as to Ameriquest, AMC, and ACC. Regardless, the filings related to NM/WF, Wells Fargo Home Mortgage, and Citigroup[8] still do not constitute a proper proof of service establishing that these defendants were actually served with a copy of the summons and complaint as required by Fed.R.Civ.P. 4(h).

         II. ANALYSIS

         A court may dismiss an action under Rule 41(b) when a plaintiff fails to prosecute, comply with the Federal Rules, or comply with a court order. Fed.R.Civ.P. 41(b). A court should consider (1) whether the party's failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party's conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered. Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 589 (6th Cir. 2001). Moreover, under Rule 4(m), “[i]f a defendant is not served within 90 days after the complaint is filed, the court . . . 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).

         With regards to this case, the Court finds that at least three of the four factors weigh in favor of dismissal.[9] First, despite the Court granting Burns multiple opportunities and additional time to demonstrate proper service, he has still failed to do so. While the Court does not presume this is the result of bad faith or willfulness, he is clearly at fault for failing to comply with the Court's orders requiring proof of proper service on these five defendants.

         The third and fourth factors were met by the Court's three orders to show cause, which specifically warned Burns that “his failure to timely and properly respond . . . will result in a recommendation that his claims against Defendants Ameriquest, AMC, NM/WF, ACC, and Citigroup be dismissed without prejudice.” (Docs. #29, #33, #43) (emphasis in original). Thus, Burns has been ...


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