United States District Court, District of Columbia
M. NAWAZ RAJA, et al., Plaintiffs,
FEDERAL DEPOSIT INSURANCE CORPORATION, et al., Defendants.
MEMORANDUM OPINION AND ORDER PARTIALLY ADOPTING THE
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION REGARDING
KETANJI BROWN JACKSON United States District Judge.
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.
this Court at present is Magistrate Judge Robinson's
Report and Recommendation (“R & R”) dated
August 16, 2017, which finds that Plaintiffs have 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.) 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.
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
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.
(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.) 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
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 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).
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” and also the five Defendants who
“have not appeared, but as to whom Plaintiffs have
failed to effect service.” (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
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.)
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(1)(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.
Magistrate Judge in this case determined that Plaintiffs had
failed to provide proof of service as Rule 4(1) 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).
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.
Plaintiffs Have Failed To Comply With The FRCP's Service
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(1)(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[.]”
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.
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
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.
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.”).
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.' 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.
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
U.S. Attorney General, U.S. 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)).) To begin with, Plaintiffs have not filed
any affidavits that prove this purported service, as Rule
4(1) 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).
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 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