Doe 1-10 v. US Bank N.A. et al

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
John Doe 1-10
v. 	Civil No. 20-cv-335-SM
US Bank N.A.
REPORT AND RECOMMENDATION
This action was initiated on March 13, 2020. (Doc. No. 1).
On May 6, 2020, the plaintiffs filed a private process server’s
affidavit of service as to U.S. Bank, N.A. (“U.S. Bank”). (Doc.
No. 7). On May 19, 2020, the Clerk of Court issued a Notice
Regarding Service. (Doc. No. 10).
The Clerk of Court ordered the plaintiffs, within fourteen
(14) days, to request additional time to serve U.S. Bank or to
provide an additional affidavit demonstrating that U.S Bank was
properly served. (Doc. No. 18 at 5-6). The plaintiffs were
advised that the failure to comply would result in the referral
of the matter to a judicial officer for appropriate resolution,
including dismissal. Id.
The plaintiffs did not comply with that order. 	Rather than
moving for additional time to serve U.S. Bank or demonstrating
that U.S. Bank was properly served, the plaintiffs have filed a
second Return of Service (Doc. No. 22). 	This purported service
of process, however, suffers from the same defect as the
previous attempt.
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As explained previously, see Doc. No. 18, the complaint
alleges that U.S. Bank is a corporation. 	(Doc. No. 1 at 1).
The federal rules provide two methods for serving a corporation
within a judicial district of the United States. 	A corporation
may be served in the manner prescribed by the law of the state
where the district court is located (New Hampshire) or the state
where service is made (Ohio). 	Fed. R. Civ. P. 4(h)(1)(A); Fed.
R. Civ. P. 4(e)(1). 	A corporation may also be served “by
delivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of
process and—-if the agent is one authorized by statute and the
statute so requires—-by also mailing a copy of each to the
defendant.” 	Fed. R. Civ. P. 4(h)(1)(B).
In this case, the private process server affirms that she
delivered process on August 3, 2020, to “Robin Smuckler as
Authorized Agent for U.S. BANK N.A. aka ‘US BANCORP’, at the
address of: 425 Walnut Street, Cincinnati, OH 45202 . . . .”
(Doc. No. 22). 	This statement alone, without additional
information, does not provide a basis for the undersigned to
conclude that Robin Smuckler is in fact authorized to accept
service on behalf of the defendant.
Further, even if the plaintiffs had provided such a basis,
service on Ms. Smuckler is not timely. 	More than 90 days have
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passed since the complaint was filed and the date service was
effectuated on Ms. Smuckler. 	Federal Rule of Civil Procedure
4(m) provides:
If a defendant is not served within 90 days after the
complaint is filed, the court—on motion or on its own
after notice to the plaintiff—must dismiss the action
without prejudice against that defendant or order that
service be made within a specified time. 	But if the
plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate
period.
The court has previously given notice to the plaintiffs
that this action could be dismissed without prejudice against
U.S. Bank absent proper service or a request to extend the time
for service. 	(Doc. No. 18 at 5-6). 	The plaintiffs have not
established proper service or demonstrated that good cause
exists for the failure to timely serve U.S. Bank. 	Therefore,
the undersigned recommends that the district judge dismiss the
claims against U.S. Bank without prejudice.
Any objections to this Report and Recommendation must be
filed within fourteen days of being served with this notice.
See Fed. R. Civ. P. 72(b)(2). 	The fourteen-day period may be
extended upon motion. 	Failure to file objections within the
specified time waives the right to appeal the district court’s
order. 	See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168
(1st Cir. 2016).
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SO ORDERED.
/s/ Daniel J. Lynch
Daniel J. Lynch
United States Magistrate Judge
Date: September 2, 2020
cc: 	Selena S. Randolph, pro se
Xzavier A.R. Fleming, pro se
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