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Jones v. Experian Information Solutions, Inc.

United States District Court, D. Massachusetts

February 27, 2015

PAUL JONES, Plaintiff,
v.
EXPERIAN INFORMATION SOLUTIONS, INC. et al., Defendants.

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ORDER ADOPTING REPORTS AND RECOMMENDATIONS

GEORGE A. O'TOOLE, Jr., District Judge.

The magistrate judge to whom this matter was referred has issued three Reports and Recommendations ("R&Rs") pertaining to various motions. In an R&R issued on November 13, 2014 (dkt. no. 92), the magistrate judge recommended that the plaintiff's motion for default judgment be denied as moot as to the defendants Experian Information Solutions, Inc., Pro Debt Mediations, Inc., the Law Office of Andreu, Palma & Andreu, PL, and Pollack and Rosen, P.A. and denied as to Dynamic Recovery Service, Inc. In a separate R&R issued that same day (dkt. no. 93), the magistrate judge recommended that the plaintiff's motion to dismiss the defendants Calvary Portfolio Services and United Recovery Systems be denied as moot, that defendant Pollack & Rosen's motion to dismiss be denied, and that the plaintiff's motion to dismiss defendant Experian from the Complaint be granted. Lastly, in an R&R issued on December 29, 2014 (dkt. no. 109), the magistrate judge recommended that defendant Bank of America's motion to dismiss be denied as moot. There have been no objections to the magistrate judge's R&Rs.

Having reviewed the relevant pleadings and submissions, I approve and ADOPT the magistrate judge's recommendations in their entirety.

Accordingly, the plaintiff's Motion (dkt. no. 35) to Dismiss Calvary Portfolio Services and United Recovery Systems, Bank of America's Motion (dkt. no. 43) to Dismiss, the plaintiff's Motion (dkt. no. 52) for a Default Judgment, and Pollack & Rosen's Motion (dkt. no. 68) to Dismiss are DENIED. The plaintiff's Motion (dkt. no. 86) to Dismiss Experian from the Complaint is GRANTED.

It is SO ORDERED.

REPORT AND RECOMMENDATION ON MOTION FOR DEFAULT JUDGMENT (#52)

Pending before the court is a motion for entry of default judgment that was filed by the plaintiff, Paul Jones, against defendants Experian Information Solutions, Inc., Pro Debt Mediations Inc., the Law Office of Andreu, Palma & Andreu, PL, Pollack & Rosen, P.A., [1] and Dynamic Recovery Service, Inc. Since filing the motion, Jones has voluntarily dismissed his actions against Experian Information Solutions, Inc., Pro Debt Mediations Inc., and the Law Office of Andreu, Palma & Andreu, PL. (#74, #83, #86) In addition, Jones has since re-served Pollack & Rosen, which later filed an answer to the Complaint. (#76, #80) Based on these facts, the Court recommends that the motion for default judgment against Experian Information Solutions, Inc., Pro Debt Mediations Inc., the Law Office of Andreu, Palma & Andreu, PL, and Pollack & Rosen, P.A., be denied as moot.

Dynamic Recovery Service, Inc., remains subject to the motion for entry of default judgment. In his motion, Jones states that he properly served Dynamic, that the defendant failed to respond, and that a default judgment should be entered against Dynamic in the amount of $5, 900. (#52 at 1-2) Under Rule 55 of the Federal Rules of Civil Procedure, "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Fed.R.Civ.P. 55(a). Following an entry of default, "if the plaintiff's claim is for a sum certain, " the plaintiff can request that the clerk enter a default judgment against the defendant. Id. at Rule 55(b)(1). In this case, the plaintiff filed a "Request for Clerk's Default" on March 25, 2014. (#50) He filed a Motion for Entry of Default Judgment on March 27, 2014. (#89) He did not, however, properly serve Dynamic. A copy of a Certified Mail Receipt shows that Jones attempted service on "Dynamic Recovery Services Inc." (#7) Under Rule 4(h) of the Federal Rules, a corporation can be served by following state law or "by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process." Fed.R.Civ.P. 4(e)(1), (h). Under state law, a corporation can be served "by delivering a copy of the summons and of the complaint to an officer, to a managing or general agent, or to the person in charge of the business at the principal place of business thereof within the Commonwealth, if any; or by delivering such copies to any other agent authorized by appointment or by law to receive service of process." Mass. R. Civ. P. 4(d)(2). Jones's attempt to serve Dynamic in general, rather than to an officer, agent, or other person authorized to accept service on Dynamic's behalf, is not sufficient under these rules. Dynamic has not made an appearance in this action, nor has it agreed to waive proper service. As a result, Dynamic was not required to respond to the Complaint, and should not be deemed in default.

For the reasons stated above, the Court recommends that the motion for default judgment against Experian Information Solutions, Inc., Pro Debt Mediations Inc., the Law Office of Andreu, Palma & Andreu, PL, and Pollack & Rosen, P.A., be DENIED as MOOT, and that the motion for default judgment against Dynamic Recovery Service, Inc., be DENIED.

REPORT AND RECOMMENDATION ON MOTIONS TO DISMISS (#35, #68 & #86)

In this case, the plaintiff, Paul Jones, has brought claims against a number of defendants for violations of fair debt collection and credit reporting laws. Pending before the court are three dispositive motions which are ready for review.

First, on March 21, 2014, the plaintiff moved to dismiss defendants Calvary Portfolio Services and United Recovery Systems because they had reached an agreement out-of-court. (#35) On April 15, 2014, and April 21, 2014, the plaintiff filed joint stipulations of dismissal with Calvary and United, respectively. (#67, #73) Both parties were then terminated by the Clerk of Court as defendants in this action. See Fed.R.Civ.P. 41(a)(1)(A)(ii) (allowing a plaintiff to dismiss an action without court order by filing "a stipulation of dismissal signed by all parties who have appeared"). The Court recommends that the plaintiff's motion to dismiss his action against these parties be denied as moot.

Next, on April 16, 2014, defendant Pollack & Rosen, P.A., [1] a Florida law firm, filed a motion to quash service of process and for dismissal for insufficient service of process. (#68) In its motion, Pollack & Rosen contends that the plaintiff's alleged attempt to serve "The Law Office of Pollack & Rosen" was insufficient because it was not addressed to a person authorized to receive process, such as an officer or an agent who is authorized to do so. (#69 at 1-6 & Exhibit 1 [citing Fed.R.Civ.P. 4]) The firm also contends that it has no record of actually having received the alleged service. ( Id. at 6-7) Regardless of the merit of these claims, however, on April 21, 2014, the plaintiff attempted service on the firm again, addressing it to "Pollack & Rosen c/o Mark Pollack." (#75) Mark Pollack is one of the "two principal directors" of the firm and, as such, is authorized to receive process under Rule 4. See Fed.R.Civ.P. 4; Leung v. Citizens Bank, 2013 WL 1992453, at *2 (D. Mass. 2013); http://www.pollackrosen.com/about.html. Service was sent by certified mail, return receipt requested, as permitted under Massachusetts law. See Fed.R.Civ.P. 4(e), (h); Mass. R. Civ. P. 4(e)(3). A copy of the certified mail return postcard shows that the firm received service. (#75) Pollack & Rosen has since answered the complaint and pleaded affirmative defenses, and it did not raise any challenge to the April 21, 2014 service. ( See #80) Under these circumstances, it appears that the challenge to the initial service is moot, and that the firm has waived any claim that the new service was insufficient. See Roque v. United States, 857 F.2d 20, 21-22 (1st Cir. 1988) ("the defense of insufficient service of process is waived if not raised in the answer (or in a motion filed prior to or contemporaneously with the answer)"); Tuckerbrook Alternative Invs., LP v. Banerjee, 754 F.Supp.2d 177, 185-86 (D. Mass. 2010) ("[a] party waives a defense listed in Rule 12(b)(2)-(5) when he fails to raise it in a responsive pleading that brings forth other defenses or objections"). Further, under the Federal Rules, a plaintiff has 120 days after filing his complaint to serve defendants. See Fed.R.Civ.P. 4(m); Leung, 2013 WL 1992453, at *2. In this case, the plaintiff filed his complaint on January 28, 2014, and effected service on April 21, 2014, well before the 120-day period had run. As a result, the plaintiff's action against the firm is not subject to dismissal for improper service. Accordingly, the Court recommends that Pollack & Rosen's motion to quash service and to dismiss the complaint for insufficient service be denied.

Finally, on July 10, 2014, the plaintiff filed a motion to voluntarily dismiss defendant Experian Information Solutions, Inc. (#86) Under Rule 41 of the Federal Rules, a plaintiff generally may dismiss an action against a defendant by filing "a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment." Fed.R.Civ.P. 41(a)(1)(A)(i); accord Universidad Cent. Del Caribe, Inc. v. Liaison Comm. on Med. Educ., 760 F.2d 14, 15 (1st Cir. 1985). Experian Information Solutions has not filed an answer or dispositive motion, or otherwise appeared in this action. Given these circumstances, the Court recommends that the plaintiff's motion to dismiss defendant Experian Information Solutions be allowed.

In sum, for the reasons stated above, the Court recommends that the plaintiff's Motion to Dismiss (#35) be DENIED as MOOT, that Pollack & Rosen's Motion to Quash Service of Process and Dismiss the Complaint for Lack of Service (#68) be DENIED, and that the plaintiff's Motion to Dismiss Defendant Experian from Complaint (#86) be ALLOWED.

REPORT AND RECOMMENDATION ON MOTION TO DISMISS (#43)

On March 24, 2014, Defendant Bank of America, N.A., successor by merger to BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing LP, filed a motion to dismiss claims asserted against it by Plaintiff Paul Jones in his Complaint, filed January 28, 2014. (Motion to Dismiss by Defendant Bank of America, N.A., Successor by Merger to BAC Home Loans Servicing, LP, #43.) Since then, Plaintiff amended his complaint, and Bank of America filed a motion to dismiss the amended complaint. (Motion to Dismiss Plaintiff's Amended Complaint by Defendant Bank of America, N.A., Successor by Merger to BAC Home Loans Servicing, LP, #96.) As a result, the Court RECOMMENDS that Bank of America's earlier motion to dismiss (#43) be deemed MOOT.

The parties are hereby advised that any party who objects to this recommendation must file specific written objections with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The objections must specifically identify the portion of the recommendation to which objections are made and state the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Rule 72(b), Fed. R. Civ. P., shall preclude further appellate review. See Keating v. Secretary of Health & Human Servs., 848 F.2d 271 (1st Cir. 1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir. 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980); see also Thomas v. Arn, 474 U.S. 140 (1985).

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Notes:

[1] The plaintiff incorrectly named Pollack & Rosen, P.A., "The Law Office of Pollack & Rosen." (#68 at 1 n.1)

[1] The plaintiff incorrectly named this firm "The Law Office of Pollack & Rosen." (#68 at 1 n.1)

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