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Seldon v. Home Loan Services

January 26, 2009

TROY R. SELDON, ET AL.
v.
HOME LOAN SERVICES, INC. D/B/A FIRST FRANKLIN LOAN SERVICES, FIRST FRANKLIN FINANCIAL CORPORATION WELLS FARGO BANK, N.A.



The opinion of the court was delivered by: Yohn, J.

MEMORANDUM AND ORDER

Plaintiffs have filed a motion for leave to file a third amended complaint against the defendants and for an enlargement of time for service upon Wells Fargo Bank, N.A. For the reasons that follow, the court will deny the motion for enlargement of time for service as to Wells Fargo, dismiss Wells Fargo as a party to this action, and grant the motion to file a third amended complaint against the remaining two defendants.

I. Motion for Enlargement of Time for Service upon Wells Fargo

Wells Fargo was first added as a party to this action when the plaintiffs filed their second amended complaint on April 1, 2008. To this date, Wells Fargo has not been served with process. At oral argument on November 20, 2008, the court raised on its own motion, as authorized under Rule 4(m), the lack of service upon Wells Fargo. Plaintiffs' counsel responded that Wells Fargo had evaded service. When the court suggested that the proper remedy for that problem is to file a motion for alternative service, plaintiffs' counsel agreed. As a result of the oral argument, by order dated December 3, 2008, the court dismissed Wells Fargo as a party to the action without prejudice to the right of the plaintiffs to file a motion within ten days of the date of the order setting forth good cause for failure to make timely service and requesting an extension of time for service under Rule 4(m).

Pursuant to this order, plaintiffs filed an appropriate motion on December 22, 2008.*fn1 Plaintiffs have not set forth good cause for prior failures to serve Wells Fargo in a timely manner to entitle plaintiffs to an extension for time to serve. Similarly, plaintiffs have not presented sufficient reasons for the court to exercise its discretion to extend the time for service.

Plaintiffs assert that "[o]n numerous occasions, [they] attempted to effectuate service upon Wells Fargo." Although in their brief plaintiffs specify neither the exact number of service attempts nor the methods of service, according to plaintiffs' exhibits they attempted to serve Wells Fargo via Federal Express delivery on two occasions: (1) on August 6, 2008 to an address in Santa Ana, California and (2) on August 20, 2008 to an address in San Francisco, California. The exhibits supporting the August 6, 2008 attempt at service consist of a cover letter from counsel to Wells Fargo, a mailing label of Federal Express dated August 7, 2008, and a response from Federal Express dated August 13, 2008 stating that the entity at the Santa Ana address had moved with no forwarding address. The exhibits concerning the August 20, 2008 attempt at service consist of a cover letter from counsel and the mailing label from Federal Express dated August 21, 2008 to an address in San Francisco. Plaintiffs submitted neither a document evidencing a response from Federal Express as to whether Wells Fargo ever received the document or rejected it, nor any evidence that Federal Express deemed the document undeliverable. Further, the mailing labels in plaintiffs' exhibits contain no designated space for the recipient to acknowledge receipt of the document.

Before these attempts at service, plaintiffs contacted counsel for Wells Fargo on April 16, 2008 and requested a waiver of service. Plaintiffs claim that "counsel did not advise [p]laintiffs as to Wells Fargo's decision" about waiver. As a result, according to plaintiffs, this lack of response "caus[ed] time to elapse."*fn2 No motion for alternative service due to attempts by Wells Fargo to evade service was ever filed.

Under Federal Rule of Civil Procedure 4(m), if a party fails to serve original process on a defendant within 120 days of filing the complaint, the court must dismiss the action against that defendant on motion or on its own after notice to the plaintiff, unless "the plaintiff shows good cause for the failure." Here, plaintiffs filed their second amended complaint on April 1, 2008 adding Wells Fargo as a new party and making July 30, 2008 the deadline for service on Wells Fargo. Plaintiffs did not even attempt service until August 6, 2008 and still have presented no evidence that they ever did effect service on Wells Fargo.

Under Rule 4(h), which outlines the methods of service upon a corporation, delivery by Federal Express does not constitute proper service. Cf. Staudte v. Abrahams, 172 F.R.D. 155, 156 (E.D. Pa. 1997) ("[T]he Federal Rules of Civil Procedure do not provide for service of original process by mail, including certified mail."). Rule 4(h)(1)(A) does permit service using a method authorized by appropriate state law, here Pennsylvania law, and the Pennsylvania Rules of Civil Procedure permit service on an out-of-state corporation "by any form of mail requiring a receipt signed by the defendant or his authorized agent." Pa. R. Civ. P. 403; see Pa. R. Civ. P. 404(2) (permitting service on out-of-state corporation by mail as provided in Rule 403); see also Chapman v. Homecomings Fin. Servs., LLC, Civ. Act. No. 07-4553, 2008 WL 1859540, at *1 (E.D. Pa. Apr. 25, 2008) (noting that "under Pennsylvania law, service by mail upon an out-of-state individual or corporation is not proper unless it is effected by a form of mail requiring a receipt signed by the defendant or his authorized agent" and concluding that plaintiff failed to meet this requirement). Plaintiffs' exhibits include only Federal Express mailing labels, not signed receipts from Wells Fargo confirming delivery and acceptance; therefore, plaintiffs have not properly served Wells Fargo. Consequently, plaintiffs can only properly serve Wells Fargo if this court grants an extension of the time to serve.

In the Third Circuit, courts determine extensions of time to serve under Rule 4(m) based on a two-pronged inquiry.

First, the court must determine whether good cause exists for the failure to have effected service in a timely manner. If so, the extension must be granted. If good cause has not been shown, however, the court still may grant the extension in the sound exercise of its discretion.

McCurdy v. Am. Bd. of Plastic Surgery, 157 F.3d 191, 196 (3d Cir. 1998) (citing MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1098 (3d Cir. 1995); Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995)).

Concerning the first prong, the Third Circuit has equated "good cause" with the concept of "excusable neglect" of Federal Rule of Civil Procedure 6(b)(2), which requires "a demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules."

MCI, 71 F.3d at 1097 (citing Petrucelli, 46 F.3d at 1312 (Becker, J., concurring in part and dissenting in part)). In determining whether good cause exists for permitting service beyond the 120-day deadline, courts rely on three factors: "(1) reasonableness of plaintiff's efforts to serve (2) prejudice to the defendant by lack of timely service and (3) whether plaintiff moved for an enlargement of time to serve." Id. (citing United States v. Nuttall, 122 F.R.D. 163, 166-67 (D. Del. 1988). Moreover, even where untimely service does not prejudice a defendant, "absence of prejudice alone can never constitute good ...


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