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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

James Jones, 

Plaintiff, 

v. 

Bank of America NA, et al., 

Defendants. 

No. CV-17-08231-PCT-SMB 

ORDER 

Pending before the Court are three motions to dismiss filed by Defendant Country 

Wide Inspection Services (“Defendant” or “CWIS”). The first motion was filed on 

February 5, 2019 and seeks to dismiss Plaintiff’s Amended Complaint pursuant to Fed. R. 

Civ. P. 4, 12(b)(6), and 12(b)(4).1

 (Doc. 50). Plaintiff James Jones filed an opposition. 

(Doc. 61). CWIS then filed a second motion on March 29, 2019, requesting a ruling on 

the previous motion and seeking immediate dismissal. (Doc. 64). Plaintiff also filed an 

opposition to the second motion. (Doc. 65). CWIS then filed another motion to dismiss 

on July 26, 2019 (Doc. 78), to which Plaintiff filed a Response (Doc. 79). 

BACKGROUND 

On November 6, 2017, Plaintiff filed a Complaint against multiple defendants, 

 

1

 While Defendant asserts “12(b)(4)” in the title of the motion, the substance of 

Defendant’s motion comes under “12(b)(5),” and Defendant specifically requests dismissal 

under “12(b)(5)” later in the motion. (Doc. 50 at 4). “Rule 12(b)(4) enables the defendant 

to challenge the substance and form of the summons, and 12(b)(5) allows the defendant to 

attack the manner in which service was, or was not, attempted.” Bothwell v. Brennan, No. 

C-13-5439 JSC, 2014 WL 953500, at *2 (N.D. Cal. Mar. 6, 2014). 
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including CWIS. That complaint was dismissed and an Amended Complaint (“FAC”) was 

filed on January 26, 2018 with court approval. Plaintiff’s claims are based on alleged 

violations of the Fair Debt Collection Practices Act (the “FDCPA”) and the Truth in 

Lending Act (the “TILA”). 

On August 2, 2018, the Court issued an order granting Plaintiff’s request for service 

by the United States Marshals Service (the “Marshals”) pursuant to Fed. R. Civ. P. 4(c)(3). 

(Doc. 11). Specifically, the Court ordered that the “United States Marshal shall effect 

service of the Amended Complaint (Doc. 8)” and provided Plaintiff with specific 

instructions for serving the summons and FAC in this manner. (Doc. 11 at 2–3). Plaintiff 

provided the Marshals with an incorrect address, preventing the Marshals from effecting 

service on CWIS, which the Marshals reported on September 7, 2018. (Doc. 12). 

On September 18, 2018, Plaintiff requested another service package so that he could 

correct CWIS’s address, (Doc. 15), and the Court granted his request on October 1, 2018, 

(Doc. 18). The Clerk of Court sent the service packet to Plaintiff on the same day. Instead 

of returning the packet to the Marshals, it appears that Plaintiff then attempted service by 

mailing a copy of the summons and FAC to CWIS at both a Phoenix, Arizona address and 

a Colorado Springs, Colorado address via certified mail with return receipt requested. 

(Doc. 23). The FAC and Summons sent to the Phoenix address were returned due to a 

wrong address. (Doc. 23 at 9). The FAC and Summons sent to the Colorado Springs 

address were delivered and signed for by “E Murten.” (Doc. 23 at 7). They were not, 

however, addressed to any specific person, officer, or agent. 

On October 25, 2018, Defendant Bank of America filed a motion to dismiss 

requesting dismissal in part for failure to serve process. (Doc. 20). On December 28, 2018, 

this Court issued an order (based on similar facts to the facts above) finding “that service 

of process failed because it was not complete[d] by a non-party, certified mail is not an 

acceptable form of service, and the summons and complaint were not mailed to a person 

authorized to accept service.” (Doc. 34 at 4). The Court quashed the service and gave 

Plaintiff an opportunity to properly serve Bank of America. (Doc. 34 at 4–5). Plaintiff 
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then moved on January 3, 2019, for another service packet to serve all defendants, 

including CWIS, (Doc. 39), and the Court granted that motion on February 13, 2019, (Doc. 

54). The Clerk of Court received the packet from Plaintiff on February 20, 2019. The 

Summons and Complaint were served on “Carolyn Ramagos, CEO” of “Country Wide 

Inspection Services” on May 22, 2019. (Doc. 73 at 3). 

DISCUSSION 

I. Legal Standards 

A. Service of Process

Federal Rule of Civil Procedure 12(b)(5) allows a party to move to dismiss claims 

against it for insufficient service of process. The serving party bears the burden of 

establishing the validity of service. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). 

Service must be accomplished by an adult who is not a party to the case. See Fed. 

R. Civ. P. 4(c)(2). Under Rule 4(h)(1)(B), service of process can be effected on a foreign 

corporation through delivery of the summons and complaint to “an officer, a managing or 

general agent, or any other agent authorized by appointment or by law to receive service 

of process[.]” “When serving a corporation, Rule 4(h) requires personal service on 

someone at the corporation, and service by mail to a general corporate address is not 

sufficient.” Belle v. Chase Home Fin. LLC, No. 06-CV-2454 WQH (LSP), 2007 WL 

1518341, at *3 (S.D. Cal. May 22, 2007) (citing Larsen v. Mayo Med. Ctr., 218 F.3d 863, 

868 (8th Cir. 2000) (service on corporation was ineffective “because the summons and 

complaint were mailed and not personally served on anyone during the limitations 

period.”)). 

In cases involving plaintiffs proceeding in forma pauperis, the United States 

Marshals Service, upon order of the Court, are authorized to serve the summons and the 

complaint. See 28 U.S.C. § 1915(d); see also Boudette v. Barnett, 923 F.2d 754, 757 (9th 

Cir. 1991). A pro se plaintiff proceeding in forma pauperis is entitled to rely on the 

Marshals for service, and such plaintiff’s action should not be dismissed for failure to effect 

service because of the Marshals’ failure to perform their duties. Puett v. Blandford, 912 
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F.2d 270, 275 (9th Cir. 1990). However, it remains plaintiffs’ responsibility to provide the 

Marshals with accurate and sufficient information to effect service. Allen v. Comm’r of 

Ariz. State Prison, No. CV-13-08048-PHX-GMS, 2014 WL 2435685, at *3 (D. Ariz. May 

30, 2014). 

Under Federal Rule of Civil Procedure 4(m), “[i]f a defendant is not served within 

90 days after the complaint is filed, 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.” In deciding whether to dismiss a case or extend 

the time period for service under Rule 4(m), the court employs a two-step analysis. Efaw 

v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007). First, if there is a showing of good cause 

for the delay, the court must extend the time period. Id. Second, if there is no showing of 

good cause, the court has discretion to either dismiss without prejudice or extend the time 

period. Id. “District courts have broad discretion to extend time for service under Rule 

4(m).” Id. at 1041. “Because pro se litigants must rely on the Marshal for service, delays 

in service attributable to the Marshal automatically constitute good cause preventing 

dismissal under Rule 4(m).” Armado v. Advanced Call Ctr. Techs., No. CV 10-1630-PHXJAT, 2011 WL 906053, at *1 (D. Ariz. Mar. 16, 2011) (internal quotation marks and 

alteration omitted) (quoting Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir.1995)). 

B. Failure to State a Claim

To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must meet 

the requirements of Rule 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the 

claim showing that the pleader is entitled to relief,” so that the defendant has “fair notice 

of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Dismissal 

under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory or the absence 

of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police 

Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that sets forth a cognizable legal 

theory will survive a motion to dismiss if it contains sufficient factual matter, which, if 
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accepted as true, states a claim to relief that is “plausible on its face.” Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Facial plausibility exists if 

the pleader sets forth “factual content that allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged.” Id. “Threadbare recitals of the 

elements of a cause of action, supported by mere conclusory statements, do not suffice.” 

Id. Plausibility does not equal “probability,” but requires “more than a sheer possibility 

that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are 

‘merely consistent’ with a defendant’s liability, it ‘stops short of the line between 

possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 

557). 

 Although a complaint attacked for failure to state a claim does not need detailed 

factual allegations, the pleader’s obligation to provide the grounds for relief requires “more 

than labels and conclusions, and a formulaic recitation of the elements of a cause of action 

will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). Rule 8(a)(2) “requires 

a ‘showing,’ rather than a blanket assertion, of entitlement to relief,” as “[w]ithout some 

factual allegation in the complaint, it is hard to see how a claimant could satisfy the 

requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ 

on which the claim rests.” Id. at 555 n.3 (citing 5 Charles A. Wright & Arthur R. Miller, 

Federal Practice & Procedure § 1202, at 94–95 (3d ed. 2004)). Thus, Rule 8’s pleading 

standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me 

accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 

 In ruling on a Rule 12(b)(6) motion to dismiss, the well-pled factual allegations are 

taken as true and construed in the light most favorable to the nonmoving party. Cousins v. 

Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions couched as 

factual allegations are not given a presumption of truthfulness, and “conclusory allegations 

of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto 

v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). 
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II. Analysis

A. Insufficient Service 

In its first motion, CWIS asks the Court to dismiss Plaintiff’s claims against CWIS 

under Rule 12(b)(5) “due to attempted service by a party to the case; service being made 

by certified mail, an unacceptable means of service; and the failure to serve an agent, 

officer, or authorized individual of CWIS.” (Doc. 50 at 4). The Court agrees that Plaintiff 

is not allowed to serve the papers because he is a party to the case. The Court also notes 

that there is no authorization for service by certified mail on a corporation. Additionally, 

Plaintiff offered no explanation for why he did not make an effort to locate the proper 

person to accept service. Serving an employee who is not an officer, a managing or general 

agent, or an agent authorized to accept service does not satisfy the requirements for proper 

service. See Williams v. GEICO Corp., 792 F. Supp. 2d 58, 65 (D.D.C. 2011). These 

arguments by Defendant pertain to Plaintiff’s attempt to mail service to Defendant. 

However, after the first motion was filed by Defendant, the Court granted Plaintiff’s motion 

for another service packet, (Doc. 54), and the Marshals subsequently served Defendant, 

(Doc. 73). 

Defendant also argues that the claims should be dismissed pursuant to Rule 4(m). 

Defendant notes that on January 3, 2019, “Plaintiff requested a second service package 

from the Court to serve CWIS,” and “Service by a U.S. Marshal[ ] has not been completed.” 

(Doc. 50 at 3). But as noted above, after Defendant filed its first motion, the Court issued 

an order on February 13, 2019 granting Plaintiff’s January 3, 2019 request for another 

service package. (Doc. 54). In that order, the Court ordered Plaintiff to complete and 

return the service packet to the Clerk of Court by March 15, 2019. (Doc. 54 at 1). Records 

from the Clerk of Court show that Plaintiff’s service packet was received by the Clerk’s 

Office on February 20, 2019.2

 At that point, Plaintiff was no longer in control of service. 

 

2

 In Defendant’s second motion, it also ask the Court to dismiss based on Plaintiff’s failure 

to comply with the Court’s February 13, 2019 order, (Doc. 54). Defendant argues that 

Plaintiff “has now failed to comply with the Court’s February 13th order requiring service 

by March 15, 2019.” (Doc. 64 at 2). However, the Court’s order required Plaintiff to “complete and return the service packet to the Clerk of Court by March 15, 2019,” not to 
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Accordingly, the Court denies Defendant’s request to dismiss under Rule 4(m). 

B. Failure to State a Claim 

Defendant also moves to dismiss for failure to state a claim pursuant to Rule 

12(b)(6). (Doc. 50 at 6–7). Defendant argues that “Plaintiff states no facts or exhibits to 

support his conclusory allegation” that CWIS is a debt collector pursuant to the FDCPA 

and foreclosed on Plaintiff’s home. (Doc. 50 at 6). In fact, Plaintiff makes very few 

allegations against CWIS. Plaintiff alleges that “CWIS is an agent that services real 

property and is a debt collector as defined by” the FDCPA. (FAC at 3). Plaintiff also 

alleges that CWIS “illegally, without notice, foreclosed and took possession of Plaintiffs 

Real Property, Home and land, sometime between April 2016 and August 2016 leaving 

Plaintiff homeless,” (FAC at 3), and that it did so “in a fraudulent, deceptive, unfair, and 

unconscionable manner by stating the property was abandon[ed] which in fact it was not 

abandoned[.]” (FAC at 9). Plaintiff further alleges that CWIS violated the TILA “by 

failure to disclose,” (FAC at 11), and that CWIS “was sent a ‘Verification of Proof of 

Claim,’” to which CWIS never answered. (FAC at 12). 

Plaintiff makes claims pursuant to the FDCPA and the TILA. However, Plaintiff 

does not provide any factual allegations sufficient to state a claim under either act. “In 

order to state a claim under the FDCPA, a plaintiff must show: 1) that he is a consumer; 2) 

that the debt arises out of a transaction entered into for personal purposes; 3) that the 

defendant is a debt collector; and 4) that the defendant violated one of the provisions of the 

FDCPA.” Dix v. Nat’l Credit Sys., Inc., No. 2:16-CV-3257-HRH, 2017 WL 4865259, at 

*1 (D. Ariz. Oct. 27, 2017). To be held liable for violation of the FDCPA, a defendant 

must, as a threshold requirement, fall within the act’s definition of “debt collector.” See

Heintz v. Jenkins, 514 U.S. 291, 294 (1995). In regard to his FDCPA claims, Plaintiff has 

done no more than provide “conclusory statements” asserting “[t]hreadbare recitals of the 

elements of a cause of action”—which is insufficient to meet the Rule 8 standard. See 

 

complete service by that date. (Doc. 54) (emphasis added). Accordingly, Plaintiff is not 

in violation of this Court’s order. 
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Iqbal, 556 U.S. at 678. At a minimum, Plaintiff provides no factual support to his 

allegation that Defendant is a debt collector, nor does he make any allegations that 

Defendant attempted to collect a debt. (Doc. 50 at 6) (“Within the 105 pages of Plaintiff’s 

exhibits there is no evidence of any communication from CWIS attempting to collect a 

debt from Mr. Jones.”). 

Likewise, Plaintiff has not pled sufficient facts to sustain a cause of action under the 

TILA. TILA is a consumer protection statute that seeks to “avoid the uninformed use of 

credit[.]” 15 U.S.C. § 1601(a). Section 1638 of the TILA requires that certain disclosures 

be made by the creditor to the consumer for each “consumer credit transaction other than 

under an open end credit plan.” 15 U.S.C. § 1638(a). It is not clear in the FAC what 

Plaintiff is alleging against Defendant under the TILA. Plaintiff merely alleges that 

Defendant “was sent a ‘Verification of Proof of Claim’ on October 12, 2017 with an added 

stipulation to bring forth any and all valid bonafide legal proof of their right to foreclose 

on Plaintiff with agency or as a holder in due course,” and that Defendant never answered. 

(FAC at 12). Plaintiff has failed to state a claim against Defendant under the TILA. 

Accordingly, Plaintiff has failed to state a claim against Defendant under the 

FDCPA or the TILA, and all counts against Defendant CWIS are dismissed. 

IT IS ORDERED granting Defendant CWIS’s motion to dismiss (Doc. 50). 

Defendant’s later motions to dismiss, (Docs. 64 and 78), are therefore considered moot. 

 Dated this 10th day of July, 2019.