Rossell et al v. HSBC North America Holdings, Inc. et al, No. 2:2016cv00076 - Document 13 (S.D. Ga. 2016)
Court Description: ORDER DENYING 4 Motion to Dismiss and EXTENDS the Rossells' time for service for 14 days from the issuance of this Order to submit a recast complaint. The Motion for More Definite Statement is GRANTED. The Rossells have 14 days from the i ssuance of this Order to (1) properly serve process on defendants and (2) submit a recast complaint free of the defects identified above. The Clerk of Court is DIRECTED to mail a copy of this Order to the Rossells at the address listed for them in the docket. Signed by Chief Judge Lisa G. Wood on 11/28/2016. (csr)
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Rossell et al v. HSBC North America Holdings, Inc. et al Sn Doc. 13 ?lintteii States! IBtsitntt Court for ti^e ^outfiem Btotritt of <S>eorgta iSntnoloick IBtbtsiion JEFFREY ROSSELL and MAUREEN A. ROSSELL, Plaintiffs, No. 2:16-CV-76 V. HSBC NORTH AMERICA HOLDINGS, INC.; HSBC FINANCE CORPORATION; HSBC MORTGAGE CORPORATION (USA); HSBC MORTGAGE SERVICES, INC.; HSBC USA INC.; and HSBC BANK USA, Defendants. ORDER Before Holdings, Inc., Corporation Inc., the Court HSBC (USA), For the Motion reasons HSBC HSBC North Corporation, Mortgage Services, America HSBC Inc., Mortgage HSBC N.A.'s Motion to Dismiss and, for More herein, the Motion for More Defendants Finance and HSBC Bank USA, Alternative, is Definite Statement, the Motion to Dismiss dkt. USA in the no. is DENIED, 4. but Definite Statement is GRANTED. FACTUAL BACKGROUND Jeffrey against and Maureen Defendants in A. Rossell Georgia filed superior a court pro on se lawsuit April 26, A0 72A (Rev. 8/82) Dockets.Justia.com 2016. Dkt. No. summons by Service, Dkt. 1-1. certified The Rossells sent their complaint and a mail to ''Legal Group, HSBC Inc" at the instruction of a superior court clerk. Nos. 7 at 1, 7-1. Their complaint named six HSBC entities as Dkt. No. 1-1 at 4. Its factual by HSBC North America Holdings, id. Mortgage 8, 17; statement alleged wrongdoing Inc., and "Lender," id. 5 3; "Defendants," 11 13-16, 18. "Defendants" and "Lender" were not defined in the complaint. contained six counts, (1) Lender and defendants. The complaint against: Defendants, for fraud, deceit, and negligent misrepresentation, id. 11 19-26; (2) Lender and Defendants, for negligence, id. (3) Lender, including but not for violations limited to . of . "state . Civil Code Section 13-8-15," and HAMP, (4) id. Lender, and RESPA[,] 27-31; federal . . . law, Georgia id. 11 32-37; for an injunction and declaratory judgment, for reformation 11 38-43; (5) Lender, of contract, id. SISI 44-52; (6) Lender and "Does," for breach of implied covenant of and good faith and fair dealing. Id. 11 53-58. Defendants removed the case to the Court on May 26, Dkt. No. 1. On June 2, 2016, 2016. Defendants moved for dismissal of the case for failure to serve process, or, for 4. more definite statement. Dkt. No. alternatively, The Rossells responded to the motion to dismiss, dkt. no. 7, and Defendants replied. Dkt. No. 9. The motions are now ripe for resolution. The Court will not dismiss the case, but will instead order the Rossells to properly serve process within 14 days. The Court will grant Defendants' motion for more definite statement. LEGAL ""After removal, STANDARDS the sufficiency of service of process is determined according to federal law." Co., in 185 F.R.D. service Procedure] may 4." 693, 696 be (M.D. Ga. 1998). cured Id. under 74 Swift Transp. ""Thus, any defects [Federal] Rule [of Civil Rule 4 ""must be construed leniently with regard to pro se litigants." F.3d 72, Rentz v. {6th Cir. Habib v. Gen. Motors Corp., 15 1994). A complaint must ""give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Baldwin Cty. (Stevens, 41, 47 J., Welcome Ctr. dissenting) (1957)). ""A v. Brown, (quoting Conley v. party statement of a pleading . 466 U.S. . may . move for 147, 164 (1984) Gibson, 355 U.S. a definite more which is so vague or ambiguous that the party cannot reasonably prepare a response." Fed. R. Civ. P. 12(e). '''The basis for granting a Rule 12(e) motion is unintelligibility. a more definite CV407-194, Courts generally statement." Stephens 2008 WL 1733668, at (internal citation omitted). *1 disfavor v. motions for States, No. United (S.D. Ga. Apr. "[W]hile pro se 14, 2008) litigants are bound by the same rules of procedure and practice applicable to all litigants, the courts afford great lenience to complaints drafted by individuals who are unable to obtain the services of legal counsel." Id. DISCUSSION I. THE ROSSELLS HAVE 14 DAYS TO PROPERLY SERVE PROCESS. The Rossells Defendants. failed Mailing a to properly complaint serve and summons process to upon Defendants' supposed attorneys did not comply with O.C.G.A. § 9-11-4. that this case has been removed to federal court, need to with serve process Federal Defendants Rule of Civil However, 4(m) on Procedure the Rossells' in a the Rossells way that improperly 4. case will not be dismissed. period" serving if the process. Rossells The have Rossells good Rule cause followed instruction given to them by a superior court clerk. at complies requires the Court to "extend the time for service for an appropriate 7 Now 1. Comm' rs, This 476 is good cause. F.3d 1277, 1281 Lepone-Dempsey v. (11th Cir. 2007) for faulty Dkt. No. Carroll Cty. (identifying ^'reliance on faulty advice" as good cause Frank, 929 F.2d 603, 604 (11th Cir. (quoting Prisco v. 1991) (per curiam) ) ) . Therefore, the Court DENIES Defendants' motion to dismiss and EXTENDS the Rossells' time for service for 14 days from the Issuance of this Order. II. DEFENDANTS' MOTION FOR MORE DEFINITE STATEMENT IS GRANTED. Defendants move for more definite statement. at 3. This motion is GRANTED.^ Dkt. No. 4 A complaint must ^^give the defendant fair notice of what the plaintiff s claim is and the grounds upon which it rests." U.S. at 164 U.S. at 47). from the (1) relate. J., dissenting) (quoting Conley, 355 Three elements of a proper complaint are missing Rossells' : Claims have to specify the defendant to which they See 2457526, at 2441916 (S.D. which (Stevens, Baldwin Cty. Welcome Ctr., 466 Singleton *2 (S.D. Ga. Defendants v. Ga. June 16, acted Berqlin, May 2011) 10, No. CV610-097, 2011 WL adopted, 2011 WL 2011), (^'Plaintiff fails to explain negligently or with deliberate ^ The Court does not, however, accept Defendants' characterization of the Rossell's complaint as a '"shotgun" pleading. Id. at 3-4. The complaint does not "contain [] several counts, each one incorporating by reference the allegations of its predecessors, leading to a situation where most of the counts (i.e., all but the first) contain irrelevant factual allegations and legal conclusions." Strategic Income Fund, 305 F.3d 1293, 1295 L.L.C. (11th particular to each count. v. Spear, Leeds & Kelloqq Corp., Cir. 2002). It gives facts indifference, violated his constitutional rights, or violated the Freedom required of to rights."). Information guess how they The Rossells' ^'Lender," Act. Defendants allegedly should violated not be Plaintiffs complaint alleges counts against '"Defendants," and "Does," none of whom are identified. (2) and/or Each claim has to specify a single "source of law legal theory Gibbons liability." upon v. 5460593, at *4 which [the McBride, No. assert[] CV (S.D. Ga. Oct. 27, 2014). plaintiffs] 2014 deceit, WL Two of the Rossells' counts allege multiple causes of action. {alleging fraud, 114-056, Dkt. No. 1-1 at 7 and negligent misrepresentation), 9 (alleging violations of RESPA, HAMP, and O.C.G.A. § 13-8-15). (3) Enough facts have to be clearly and consistently pled to put Defendants on notice of the grounds of each claim. See Baldwin Cty. dissenting) Welcome Ctr., (quoting Conley, 466 U.S. 355 U.S. at 164 at 47). (Stevens, J., The Rossells' complaint twice falls short of pleading facts adequately : ^ Defendants' three other gripes about the complaint's facts are unconvincing. The Court rejects Defendants' argument that the complaint is contradictory as to the foreseeability of the Rossells' default; read liberally, as a pro se complaint must be, the complaint pleads that the default was foreseen to Defendants, but not the Rossells. 7; Stephens v. United States, No. at *1 (S.D. Ga. Apr. are read liberally). 14, 2008) Dkt. Nos. 4 at 6, 1-1 at 6CV407-194, 2008 WL 1733668, (noting that pro se pleadings (a) The complaint alleges both that ^^Plaintiffs' attempts to modify their mortgage with Lender were thwarted by Lender's refusal discussion '''Lender with Id. (b) have any Plaintiffs," approved Plaintiffs." to a dkt. meaningful no. 1-1 loan modification at modification 11, sometime in and 2014 that for at 12. Facts regarding negotiations with Defendants, the Rossells' and Defendants' initial issuance of a loan to the Rossells, underpin several counts, see id. at 7-8, 10, 12-13, but are not pled. The Rossells need to remedy these failures. thus GRANTS Defendants' The Court motion for more definite statement and gives the Rossells 14 days from the issuance of this Order to submit a recast complaint. CONCLUSION For the reasons DENIED. The above. Defendants' Motion to Dismiss is The Rossells have 14 days from the issuance of this Court sees no contradiction in the complaint's pleading that the Rossells began suffering medical and financial difficulties in 2007 but only sent a hardship letter to Defendants The Court in 2015. does not Dkt. see No. a 1-1 at 5-6. contradiction so much as a lack of chronological order in the Rossells pleading that they went through a fraudulent loan modification process in 2014 two paragraphs after pleading the 2015 letter. Id. at 6, 12. Of course, the Rossells should clarify these and any other points in their recast complaint. Defendants will be free to attack the sensibility, consistency, and credibility of the Rossells' pleadings throughout these proceedings. Order to (1) submit a recast above. The Clerk of Court is DIRECTED to mail a copy of this Order to the properly serve complaint Rossells at process free the of address on the defendants defects listed for and (2) identified them in the docket. SO ORDERED, this 28th day of November, 2016. tffSA GODBEY WOOD, CHIEF JUDGE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA
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