Stroud v. Wells Fargo Home Mortgage et al, No. 1:2013cv00531 - Document 10 (N.D. Ga. 2014)
Court Description: ORDER AND OPINION denying 9 Plaintiff's Motion for Reconsideration. Signed by Judge Julie E. Carnes on 2/4/14. (ddm)
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION WAYMON B. STROUD, SR., Plaintiff, CIVIL ACTION NO. v. 1:13-cv-0531-JEC WELLS FARGO HOME MORTGAGE, FEDERAL NATIONAL MORTGAGE ASSOCIATION, and SHAPIRO, SWERTFEGER & HASTY LP, Defendants. ORDER & OPINION This case Reconsider [9]. is before the Court on plaintiff s Motion to In his motion, plaintiff seeks reconsideration of the Court s denial of his request for an entry of default against defendant Shapiro, Swertfeger & Hasty LP ( Shapiro ). (See Order [7] at 1.) Plaintiff does not object to the Court s concurrent decision to grant defendants Wells Fargo Home Mortgage and Federal National Mortgage Association s motion to dismiss [5], and the Court will not revisit that decision. However, plaintiff contends that the failure to order a default against Shapiro constitutes plain error under Federal Rule 55, which provides for the entry of a default judgment against a defendant who has failed to plead or otherwise defend an action. AO 72A (Rev.8/82) FED. R. CIV. P. 55. As the Court explained in its previous Order, plaintiff failed to properly serve Shapiro in this action. (Order [7] at 1.) Specifically, plaintiff violated Rule 4(c)(2), which requires service by a person who is not a party in the case. FED. R. CIV. P. 4(c)(2). Plaintiff also failed to comply with the requirements of Rule 4(h) for service on a corporation or partnership. See FED. R. CIV. P. 4(h)(1)(B)(requiring delivery of the summons and complaint to an authorized agent or, alternatively, requiring service in compliance with state requirements) and O.C.G.A. ยง 9-11-4(e)(1)(A)(specifying that service should be accomplished by delivery of the summons and complaint to the president, other officer, or registered agent of a corporation). As plaintiff failed to perfect service, Shapiro was not required to respond to the complaint. 860, 862 (11th Cir. 2005). Sun v. United States, 151 Fed. App x The Court plaintiff s motion for entry of default. thus Id. properly denied See also Jerome v. Barcelo Crestline, Inc., No. 1:07-cv-0447-WSD-LTW, 2007 WL 4224782, at *3 (N.D. Ga. Nov. 27, 2007)(Duffey, J.)( the Court cannot enter default against a party that appears to have no awareness it is being sued ). Accordingly, plaintiff s motion for reconsideration [9] is DENIED. 2 AO 72A (Rev.8/82) SO ORDERED, this 4th day of February , 2014. /s/ Julie E. Carnes JULIE E. CARNES CHIEF UNITED STATES DISTRICT JUDGE 3 AO 72A (Rev.8/82)
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