United States District Court, M.D. Tennessee, Nashville
Betty Jo Goodman, Plaintiff, Pro se, Nashville, TN.
For Nationstar Mortgage, LLC, Defendant: Phillip P. Welty, LEAD ATTORNEY, Gullett, Sanford, Robinson & Martin, Nashville, TN.
For Shapiro & Kirsch, LLP, Defendant: Bonnie Baggott Culp, LEAD ATTORNEY, Shapiro & Kirsch, LLP, Memphis, TN.
JOE B. BROWN, United States Magistrate Judge. HONORABLE WILLIAM J. HAYNES, JR.
REPORT AND RECOMMENDATION
JOE B. BROWN, United States Magistrate Judge.
For the reasons stated below, the Magistrate Judge recommends that the Plaintiff's notice to the Clerk to show cause why an order claiming default judgment should not be entered for the Plaintiff, be DENIED and that the Defendants' motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) be GRANTED, and that this case be dismissed with prejudice.
The Plaintiff filed an earlier complaint in forma pauperis ( Goodman v. Nationstar Mortgage, LLC, No. 3:13 1377, 2014 WL 1385861, at *1 (M.D. Tenn. Apr. 9, 2014) report and recommendation adopted, No. 3:13 CV 1377, 2014 WL 2739329 (M.D. Tenn. June 17, 2014)). Magistrate Judge Griffin made an initial review of the complaint and recommended that the case be dismissed for failure to state a claim upon which relief could be granted. Goodman, No. 3:13 1377, 2014 WL 1385861, at *5. After allowing the Plaintiff to file a delayed objection to Magistrate Judge Griffin's report and recommendation on June 17, 2014, Judge Trauger reviewed the matter de novo. Goodman, No. 3:13 1377, 2014 WL 2739329, at *1. She accepted the report and recommendation in its entirety and made the findings of fact and conclusions of law her decision, thereby dismissing the case for failure to state a claim upon which relief can be granted. Goodman, No. 3:13 1377, 2014 WL 2739329, at *2. Judge Trauger further found that any appeal of the matter would not be taken in good faith. Goodman, No. 3:13 1377, 2014 WL 2739329, at *2. No appeal was taken from this order. (Docket Entry 6-3).
The present complaint is word-for-word from the original complaint with the exception that in the present complaint, the Plaintiff has left out claims of an invasion of privacy, negligent, wanton and/or intentional hiring and supervision of incompetent employees or agents. (Docket Entry 1).
In the present complaint, the Plaintiff paid the $400 filing fee and attempted service of process (Docket Entry 1). In her subsequent notice to the Clerk to show cause why an order granting default judgment should not be entered (Docket Entry 3), the Plaintiff provided documents to attempt to show she had mailed a copy of the complaint and summons to Defendant Nationstar Mortgage, LLC (Nationstar) and Defendants Shapiro & Kirsch, LLP (Shapiro).
The notice contended that on November 6, 2014, Nationstar received a copy of the complaint and that on December 15, 2014, a copy of the complaint had not been delivered to Defendant Shapiro, and that as of December 14, 2014, there had been no response to the complaint by either Defendant. The Plaintiff did not return an actual copy of the summons showing service of process.
A default judgment in federal court is a two step process. The Plaintiff must first move and secure a default against a defendant and after securing default then move for a default judgment. In order to obtain a default, the Plaintiff must show that service of process was accompanied in accordance with Federal Rules of Civil Procedure 4. In this case, the Plaintiff's own pleadings show that she did not accomplish service of process on Defendant Shapiro. The Plaintiff has failed to return the second page of the summons which ...