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Church-El v. Bank of New York

United States District Court, Third Circuit

December 31, 2013

KHYON ERNEST CHURCH-EL, Plaintiff,
v.
BANK OF NEW YORK, as Trustee for the holders of asset-backed certificate series 2001-1F, Defendant. OPINION

APPEARANCES: Khyon Ernest Church-El 1725 West 2nd Street Wilmington, Delaware 19805 Pro Se Plaintiff

Lisa Roberson Hatfield, Esquire Morris/Hardwick/Schneider, LLC. 284 East Main Street Newark, Delaware 19711 Attorney for Defendant

OPINION

NOEL L. HILLMAN, District Judge.

This matter comes before the Court by way of Defendant Bank of New York's motion [Doc. No. 33] seeking to dismiss Plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(4) for insufficient process, and 12(b)(5) for insufficient service of process. Plaintiff Khyon Ernest Church-El opposes Defendant's motion and filed a separate motion [Doc. No. 39] for default judgment. The Court has considered the parties' submissions, and decides this matter pursuant to Federal Rule of Civil Procedure 78.

For the reasons expressed below, Defendant's motion to dismiss will be denied without prejudice, and Plaintiff's motion for default judgment will be denied as moot.

I. JURISDICTION

Plaintiff brings this action alleging claims against Defendant for purported violations of the Fair Credit Reporting Act (hereinafter, "FCRA"), 15 U.S.C. § 1681 et seq., and the Fair Debt Collection Practices Act (hereinafter, "FDCPA"), 15 U.S.C. § 1692 et seq. The Court exercises jurisdiction over Plaintiff's federal law claims under FCRA and FDCPA pursuant to 28 U.S.C. § 1331. See also 15 U.S.C. §§ 1681p, 1692k(d).

II. BACKGROUND

The detailed factual background of this case is set forth in the Court's March 21, 2013 Opinion and Order [Doc. Nos. 22, 23] and need not be repeated here. Accordingly, the Court sets forth only the basic background facts relevant to the present motion. Plaintiff filed the original complaint [Doc. No. 1] in this action on September 28, 2011 seeking a declaratory judgment, preliminary and permanent injunctive relief, and damages against Defendant for alleged violations of the Fair Credit Reporting Act and the Fair Debt Collection Practices Act "in connection with a purported mortgage appearing to be in foreclosure against the Plaintiff; the defendants' collection tactics in attempting to foreclose, and the defendants' refusal to remove or correct inaccuracies regarding [the mortgage], despite written correspondence specifying the inaccuracies and providing information that would facilitate a reasonable reinvestigation of the matter." (Compl. [Doc. No. 1] ¶ 4.)

On February 14, 2012, the Court ordered Plaintiff to show cause why the complaint should not be dismissed for failure to serve process upon Defendant within 120 days of the filing of the complaint pursuant to Federal Rule of Civil Procedure 4(m). (Order to Show Cause [Doc. No. 3] 1, Feb. 15, 2012). Plaintiff filed a response to the Order to Show Cause on March 6, 2012 indicating that Plaintiff sent a certified copy of the complaint by certified mail and that he received a return receipt verifying delivery. (Pl.'s Response [Doc. No. 4] ¶¶ 2-3.) By Order dated March 13, 2012, the Court found that "Plaintiff's method did not properly effect service upon Defendant" as required by Federal Rule of Civil Procedure 4 and several provisions of the Delaware Code, including 8 DEL. C. § 321 and 10 DEL. C. § 3111. (Order [Doc. No. 5] 1, Mar. 13, 2012.) Accordingly, the Court granted Plaintiff an additional sixty (60) days from the date of the March 13, 2012 Order to effect service upon Defendant.[1] (Id.)

Approximately two months later, on May 15, 2012, Plaintiff filed an executed summons purporting to demonstrate service upon Defendant. (Summons [Doc. No. 8] 1.) The attached proof of service indicated that Conner D. O'Rourke, a special process server from O'Rourke Investigative Associates, Inc., "served the rule to show cause... [on] Scott LaScala, operations manager, who is designated by law to accept service of process on behalf of... Bank of New York as Trustee for the Holders of Asset-backed Certificate Series 2001-1F c/o Wittstadt & Wittstadt, P.A., at c/o Corporation Trust Co., 1209 Orange Street, Wilmington, DE, 19801 on... 5/10/2012 at 3:05 p.m." (Proof of Service [Doc. No. 8] 2.)

Pursuant to the executed summons and proof of service, the Clerk of Court entered a docket notation indicating that Bank of New York was served on May 10, 2012 and Defendant's answer was due by May 31, 2012. (Text of May 15, 2012 Docket Entry by Clerk of Court.) After Defendant's May 31, 2012 deadline expired without the filing of an answer, Plaintiff, on July 18, 2012, requested that the Clerk of Court enter default against Defendant pursuant to Federal Rule of Civil Procedure 55(a).[2] (Request for Default [Doc. No. 9] 1.) Plaintiff submitted an affidavit in support of his request swearing that a copy of the summons and complaint were served on May 10, 2012, as demonstrated by the proof of service filed on the docket, and that Defendant had failed to appear, plead or otherwise defend within the time allowed. (Aff. in Supp. of Entry of Default J. [Doc. No. 9] ¶¶ 3, 5.) In accordance with Plaintiff's affidavit and request, the Clerk of Court entered default on July 23, 2012. (Entry of Default [Doc. No. 10] 1.) The Clerk thereafter mailed a copy of the entry of default to Defendant at the following two addresses: (1) care of Wittstadt & Wittstadt, 284 E. Main Street, Newark, Delaware 19711; and (2) care of Corporation Trust Co., 1209 Orange Street, Wilmington, Delaware 19801. (Id. at 2.)

Subsequently, Defendant moved to set aside the entry of default. By Opinion and Order dated March 21, 2013, the Court granted Defendant Bank of New York's motion to set aside the Clerk's entry of default on the basis that Plaintiff had yet to properly serve Defendant with a copy of the summons and complaint as required by Federal Rule of Civil Procedure 4 at the time the default was entered. (Op. [Doc. No. 22] 14, Mar. 21, 2013.) The March 21, 2013 Opinion set forth in detail the deficiencies of Plaintiff's attempts to serve Defendant under the Federal Rules of Civil Procedure and various provisions of the Delaware Code. (Id. at 12-15.) The Court further noted that Plaintiff had failed to comply with Federal Rule of Civil Procedure 4(m) which requires service within 120 days of the complaint being filed. (Id. at 15.)

However, rather than dismiss Plaintiff's complaint without prejudice for failure to timely serve, the Court granted Plaintiff an additional sixty (60) day extension of time to effect service of process on Defendant. (Id.) The Court cautioned Plaintiff that he was "on notice that this [was] the final extension of time the Court [would] grant in order to serve the summons and complaint in this action." (Id.) The March 21, 2013 Opinion explicitly stated that if Plaintiff "fail[ed] to properly and timely serve Defendant within sixty days from the date of ...


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