United States District Court, D. Massachusetts
LINDA A. ROWE and CAROL B. ROWE, Plaintiffs,
SETERUS, INC. and FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendants.
ORDER CONCERNING SERVICE OF PROCESS
DENNIS SAYLOR, IV UNITED STATES DISTRICT JUDGE
and Carol Rowe filed this action on September 9, 2016,
alleging violations of the Fair Debt Collection Practices Act
by defendants Seterus, Inc., Mark Harmon, and Federal
National Mortgage Association (“Fannie Mae”).
Carol Rowe sued both individually and in her capacity as
executrix for the estate of Arthur Rowe. On October 26, 2016,
this Court issued an order instructing plaintiffs to pay
their filing fees or file renewed motions to proceed in
forma pauperis. The Court also noted that the estate of
Arthur Rowe could not proceed either pro se or
in forma pauperis.
January 3, 2017, the Court dismissed the claims of both Linda
Rowe and Carol Rowe in her capacity as executrix without
prejudice for failure to comply with the October 26, 2016
order. The Court also issued summonses to Carol Rowe, in her
individual capacity, for her to serve on defendants in
accordance with Fed.R.Civ.P. 4(m).
January 27, 2017, Linda Rowe filed a motion for leave to
proceed in forma pauperis.
February 15, 2017, Carol Rowe returned an executed summons
that had been served on the office of Robert Mendillo,
counsel for defendant Harmon. Nine days later, on February
24, 2017, she also returned an executed waiver of service
signed by attorney Richard Demerle from defendants Seterus
and Fannie Mae dated December 7, 2016. Although the waiver
was executed before the January 3, 2017 order, the Court sees
no reason why the executed waiver of service was not
March 6, 2017, this Court issued an order construing Linda
Rowe's January 27, 2017 motion for leave to proceed
in forma pauperis in part as a motion for
reconsideration of its earlier order dismissing her from the
action. The Court granted both motions and reinstated Linda
Rowe's claims. It also issued summonses for her to serve
on defendants in accordance with Fed.R.Civ.P. 4(m).
following month, on April 18, 2017, the Court dismissed
defendant Harmon from the case, noting that the complaint
contained “no allegation that [he] did anything
unlawful or improper.” Despite that, Linda Rowe served
a summons and copy of the complaint on Harmon on April 25,
2017. The Court dismissed Harmon from the case a second time
on June 19, 2017.
April 2017, Linda Rowe attempted service on defendants
Seterus and Fannie Mae. However, the summonses were returned
Rowe then attempted to have the U.S. Marshal Service complete
service on Seterus and Fannie Mae by serving attorney Demerle
on May 24, 2017. The return of service, filed June 5, 2017,
states as follows in the “remarks” section:
“Attorney Demerle not authorized to accept service on
behalf of DEF. Contact Atty Demerle for alternate service
instructions (Washington, DC address).”
she still had not completed service, Linda Rowe filed a
motion on June 23, 2017, stating “[I] would like to
know how I could get [the] summons[es] served from the
court.” Both Linda and Carol Rowe then moved for the
Court to appoint counsel for them on July 5, 2017. The Court
denied their motion for an appointed counsel that same day.
October 5, 2017, the Court issued an order construing the
June 23 motion as a request for additional time to complete
service. The order specified that the summonses “shall
be served by Monday, November 6, 2017.” The U.S.
Marshal Service then attempted service on attorney Demerle
again on November 14, 2017. The return of service, filed on
November 16, 2017, indicates that it was served on Julie
Rizzo, the office manager of attorney Demerle's firm.
Linda Rowe has now been unable to complete service on
defendants Seterus and Fannie Mae for nearly one year. Under
Rule 4 of the Federal Rules of Civil Procedure, a defendant
located in the United States who fails to waive service,
despite being notified of the action and asked by a plaintiff
to waive service, will be required to bear the cost of such
service unless good cause is shown. Fed.R.Civ.P. 4(d)(2). It
is uncertain why attorney Demerle was authorized to execute
the waiver of service for defendants Seterus and Fannie Mae
with respect to Carol Rowe, but not Linda Rowe. At the very
least, defendants' positions appear to have been
defendants are ORDERED to report to the Court in writing on
or before December 22, 2017, whether they are willing to have
their counsel execute a waiver of service as to the claim of
Linda Rowe. If they do not agree to waive service, plaintiff
Linda Rowe shall have until January 6, 2018, to effect
service on defendants, and defendants may be liable for
expenses of service and other fees pursuant to Rule 4(d)(2).