IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BERNICE MUHAMMAD, )

 )

Plaintiff, )

)

vs. ) CIVIL ACTION 10-00054-CG-B

 )

HSBC BANK USA, NATIONAL )

ASSOCIATION, et al., )

Defendants. )

REPORT AND RECOMMENDATION

This case is before the Court on Defendants’ Motion to Dismiss

(Doc. 13), which was referred to the undersigned for a report and

recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Based upon a

careful review of Defendants’ motion, and the case file, the

undersigned RECOMMENDS that Defendants’ motion be GRANTED, in part,

and that Plaintiff’s Complaint be dismissed without prejudice. 

I. Background

On January 29, 2010, Plaintiff, proceeding pro se, filed the

instant action which involves a dispute over foreclosure of a

mortgage that Plaintiff entered into in July 2002 with Option One

Mortgage Corporation. (Doc. 1, ¶ 2). Plaintiff essentially argues

that Defendants have failed to establish that they received a

proper assignment of the mortgage prior to foreclosure. Plaintiff

requested a temporary restraining order (“TRO”) or in the

alternative, a preliminary injunction and a determination of the

actual amount of the debt owed. Following a hearing, Plaintiff’s

request for a TRO was denied. (Doc. 3). In an Order dated March

16, 2010, Plaintiff was directed to file notice of service attempts

Case 1:10-cv-00054-CG-B Document 25 Filed 06/09/10 Page 1 of 10
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L.R. 4.1 (c) provides:

(c) Notice of Service Attempt. If within forty-five (45)

days after the filing of the Complaint, Plaintiff has not

perfected service by summons or waiver of service, Plaintiff

shall file with the court a notice describing the action taken by

Plaintiff to effect service and the results thereof. 

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in compliance with L.R. 4.1(c)1 because the record did not contain

proof of service on the Defendants. (Doc. 5). Plaintiff was

directed to file the notice by March 30, 2010, or to show cause by

that date why she had not complied with the court’s local rule.

Plaintiff was cautioned that failure to respond would be deemed an

abandonment of her claims, and the action would be dismissed

without prejudice. (Id.)

In response to the Court’s Order, Plaintiff filed a document

entitled “Brief the Proof of Service to the Defendants”. (Doc. 6).

In the document, Plaintiff alleges that she mailed a copy of the

TRO and Preliminary Injunction request to Defendants’ attorneys,

Johnson & Freedman, and that an attorney for Defendant HSBC

appeared at the TRO hearing, but that no one appeared on behalf of

Mortgage Investors, Inc., Mortgage Loan Asset-Backed Certificates,

Series 202-AE1. Plaintiff also attached a U.S. Postal Service

Certified Mail Receipt which reflects that certified mail was sent

to Johnson & Freedman, Attorneys at law. (Doc. 6, page 5).

The record reflects that on March 22, 2010, Plaintiff caused

four summonses to be issued by the Clerk as follows: HSBC Bank,

USA, NA, c/o Johnson & Freedman LLC; Merrill Lynch Mortgage, c/o

Johnson & Freedman LLC; Bank of America for Merrill Lynch

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According to Plaintiff, this brief corrected errors

contained in the brief that she filed on March 19, 2010. 

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Rather than filing a response as directed, Plaintiff filed

a document requesting that all orders of the Magistrate Judge be

deemed void because the Court lacks jurisdiction. (Doc. 19)

Plaintiff’s motion was denied by the District Judge as

nonsensical. (Doc. 21).

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Mortgage, c/o Johnson & Freedman LLC; and Bank of America for

Mortgage Loan Asset-Back Certificates, Series 202-AE1, c/o Johnson

& Freedman LLC. (Doc. 8). On that same date, Plaintiff filed a

Motion for Entry of Default and Default Judgment against Defendants

Merrill Lynch Mortgage Loan & Investments, Inc., Mortgage Loan

Asset-Backed Certificates, Series 2002-HEI (Doc. 9), and a document

entitled “Brief the Proof of Service to the Defendants.”2 (Doc. 10)

Attached to the brief was a postal return receipt which reflects

that Johnson & Freedman received certified mail sent by Plaintiff

on February 2. The record also reflects that Court entered an

Order on March 30, 2010 denying Plaintiff’s Motion for Entry of

Default and Default Judgment because the Defendants had not been

served pursuant to Rule 4. (Doc. 11).

Defendant filed the instant motion to dismiss Plaintiff’s

Complaint and argues that this action should be dismissed because

service of process was improper, this Court lacks personal

jurisdiction over the Defendants, and Plaintiff’s Complaint for

injunctive relief is moot. (Doc. 13). Although Plaintiff was

directed to file a response to Defendant’s Motion, she has failed

to do so3. 

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II. Legal Analysis

Plaintiff, proceeding pro se, attempted to serve Defendants

via certified mail addressed to "Johnson & Freedman, LLC Attorney

at Law." (Doc. 8, Doc. 10 at 5). Service of Process on a

corporation in a federal lawsuit is governed by Federal Rule of

Civil Procedure 4(h). Service under that rule must be accomplished

in one of two manners: (1) in accordance with the law of the forum

state; or (2) by delivering a copy of the summons and complaint to

an “officer, managing agent, general agent, or any other agent

authorized by appointment or law to receive service of process.”

Fed. R.Civ. P.4(h)(1)(A),(B); Sheet Metal Workers’ Union Local #

441 Health and Welfare Fund v. Air Comfort Company, Inc., 2010 U.S.

Dist. LEXIS 39491 (S.D. Ala. April 20, 2010). Likewise, in

Alabama, service on a corporation requires service on “an officer,

a partner (other than a limited partner), a managing or general

agent, or any agent authorized by appointment or by law to receive

service of process." Rule 4(c)(6), Ala.R.Civ.P.; see also Alfa

Corp. v. Alfagres, S.A., 385 F. Supp.2d 1230, 1238 (M.D. Ala. 2005)

("when attempting to serve a corporation by certified mail, the

summons and complaint must be addressed to either a managing or

general agent, or any agent authorized by appointment or by law to

receive service of process, pursuant to Rule 4(c)(6)") (internal

quotation marks omitted). 

The record in this case indicates that Plaintiff sent the

summons and complaint to Johnson & Freedman by certified mail

(Docs. 6, 10 at 5), as opposed to being sent to a named officer,

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partner, managing or general agent, or any authorized agent of the

named Defendants. While Johnson & Freedman may serve as counsel

for Defendants in connection with the subject foreclosure or other

matters, such documentation does not establish that the firm or

anyone connected with the firm is the authorized agent to receive

service on behalf of any of the Defendants. (Doc. 1 at 88-97, 99-

100). Simply mailing a certified envelope containing the summons

and complaint to Johnson & Freeman, LLC Attorneys at Law, is

clearly not sufficient to satisfy the service of process

requirements set forth in Rule 4.

Defendants also argue that Plaintiff’s failure to properly

serve the summons and complaint results in a lack of personal

jurisdiction over Defendants, and that this action is therefore due

to be dismissed. A court cannot obtain personal jurisdiction over

a party without proper service of process. Hemispherx Biopharma,

Inc. v. Johannesburg Consol. Investments, 553 F.3d 1351, 1360 (11th

Cir. 2008) (holding that "[s]ervice of process is a jurisdictional

requirement: a court lacks jurisdiction over the person of a

defendant when that defendant has not been served."); see also

D'Onofrio v. Il Mattino, 430 F. Supp.2d 431, 437-38 (E.D. Pa.

2006)). Because Plaintiff failed to properly serve the summons and

complaint on Defendants, this Court lacks personal jurisdiction

over them. 

While Defendants contend that this action should be dismissed

due to defective service, and lack of personal jurisdiction, courts

have held that where there is a reasonable prospect that a

plaintiff can perfect proper service, the action is generally

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preserved. 5B Wright & Miller, Federal Practice & Procedure Civ.3d

§ 1354. See also Jackson v. Vaughan Regional Medical Center, 2009

U.S. Dist. LEXIS 93762 (S. D. Ala., October 6, 2009)(where there is

a reasonable prospect that the plaintiff will ultimately be able to

serve the defendant properly, service should be quashed and the

plaintiff should be given an opportunity to properly perfect

service) Korman v. I.R.S., 2007 WL 404041, *1 (S.D. Fla. Feb. 2,

2007) (upon technical failure in service of process on defendant,

quashing of service of process was appropriate remedy, not

dismissal of complaint). 

In this case, the record reflects that this action was filed

on January 29, 2010, and that more than 120 days have elapsed since

the action was commenced. The law is clear that “[a] plaintiff is

responsible for serving the defendant with a summons and the

complaint within the time allowed under Rule 4(m).” PNCEF, LLC v.

Hendricks Building Supply, LLC, 2010 U.S. Dist. LEXIS 42725 (S.D.

Ala. April 29, 2010)(citing Lepone-Dempsey v. Carroll County

Comm’rs, 476 F. 3d 1277, 1280-81 (llth Cir. 2007)) Under Rule

4(m), dismissal is appropriate if service is not achieved within

120 days, absent either a) good cause or b) a decision by the Court

to exercise its discretion in favor of extending the time for

service without a showing of good cause. Rance v. Rocksold Granit

USA, Inc., 583 F. 3d 1284, 1286 (llth cir. 2009)(recognizing that

dismissal under Rule 4(m) may be avoided if a plaintiff shows good

cause or other circumstances warrant extension based on the facts

of the case). “Where good cause is shown, a court must extend time

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for service; however, in the absence of good cause, a court may, in

its discretion, either allow an extension or dismiss the case

without prejudice. PNCEF, LLC v. Hendricks Building Supply, LLC

(citations omitted.) In the instant case, not only has Plaintiff

failed to oppose Defendants’ motion, but the record also fails to

affirmatively show effective service of process under Federal or

Alabama law. Furthermore, in an Order dated March 30, 2010,

Plaintiff was advised that her request for a default and default

judgment was not proper because the Defendants had not been

properly served. (Doc. 11) In addition, the instant motion placed

Plaintiff on notice of Defendants’ contentions that service was

improper. Notwithstanding, Plaintiff has not taken any action to

remedy the defects in service within the 120 day period for service

under Rule 4(m), and no good cause has been shown for this failure.

Moreover, Plaintiff’s inaction, in the face of notice of defective

service, provides no basis for believing that she will ultimately

take the necessary steps to serve the Defendants properly.

Accordingly, the undersigned recommends that Plaintiff’s Complaint

be dismissed without prejudice. 

III. Conclusion 

 For the reasons discussed herein, the undersigned RECOMMENDS

that Defendants’ motion be GRANTED in part, and that Plaintiff’s

Complaint be dismissed without prejudice. 

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The attached sheet contains important information regarding

objections to this Report and Recommendation.

DONE this 9th day of June, 2010.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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The Court’s Local Rules are being amended to reflect the

new computations of time as set out in the amendments to the

Federal Rules of Practice and Procedure, effective December 1,

2009.

 MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS 

 AND RESPONSIBILITIES FOLLOWING RECOMMENDATION 

 AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

 1. Objection. Any party who objects to this recommendation or

anything in it must, within fourteen (14) days of the date of

service of this document, file specific written objections with

the clerk of court. Failure to do so will bar a de novo

determination by the district judge of anything in the

recommendation and will bar an attack, on appeal, of the factual

findings of the magistrate judge. See 28 U.S.C. § 636(b)(1)©);

Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988). The

procedure for challenging the findings and recommendations of the

magistrate judge is set out in more detail in SD ALA LR 72.4

(June 1, 1997), which provides, in part, that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing

a “Statement of Objection to Magistrate Judge’s

Recommendation” within ten4 days after being served

with a copy of the recommendation, unless a different

time is established by order. The statement of

objection shall specify those portions of the

recommendation to which objection is made and the basis

for the objection. The objecting party shall submit to

the district judge, at the time of filing the

objection, a brief setting forth the party’s arguments

that the magistrate judge’s recommendation should be

reviewed de novo and a different disposition made. It

is insufficient to submit only a copy of the original

brief submitted to the magistrate judge, although a

copy of the original brief may be submitted or referred

to and incorporated into the brief in support of the

objection. Failure to submit a brief in support of the

objection may be deemed an abandonment of the

objection.

A magistrate judge’s recommendation cannot be appealed to a

Court of Appeals; only the district judge’s order or judgment can

be appealed.

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2. Opposing party’s response to the objection. Any opposing

party may submit a brief opposing the objection within fourteen

(14) days of being served with a copy of the statement of

objection. Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

3. Transcript (applicable where proceedings tape recorded). 

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the

magistrate judge finds that the tapes and original records in

this action are adequate for purposes of review. Any party

planning to object to this recommendation, but unable to pay the

fee for a transcript, is advised that a judicial determination

that transcription is necessary is required before the United

States will pay the cost of the transcript.

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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