Hardaway v. Litton Loan Servicing, LP, 3:17-cv-00004

Paul and Jacqueline Hardaway (pro se) sued Litton, Ocwen, and Rushmore alleging attempted fraudulent foreclosure and sought injunctive relief.
Defendants moved to dismiss under Rule 12(b)(5) for insufficient service; Ocwen and Litton also moved under Rule 12(b)(6).
Initial service attempts (Jan. 17, 2017) were effected by Paul (a party) via certified mail to corporate service — defendants promptly challenged service.
Plaintiffs later filed proofs showing service on a Corporation Service Company agent (May 8–9, 2017), after the 90‑day Rule 4(m) period had expired.
Magistrate Judge stayed the case pending resolution of service challenges; amended complaint was stricken for being filed without leave and motion to further amend was denied while dismissal motions pending.
District court concluded plaintiffs did not show "good cause" for late service but, exercising its discretion, extended the time to effect service instead of dismissing and denied the 12(b)(6) motions without prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether service was sufficient under Rule 12(b)(5)	Hardaway attempted service by certified mail to defendants' corporate service and later served an agent	Initial service was improper because a party (Paul) cannot personally serve; challenge to sufficiency warranted dismissal	Court denied 12(b)(5) dismissals; allowed plaintiffs additional time to effect proper service
Whether plaintiffs satisfied Rule 4(m) "good cause" standard	Delay due to attempts to secure counsel and intent to re-serve personally/private process server	Prompt challenges by defendants and plaintiffs’ long delay showed lack of good cause	Court found no "good cause" for delay
Whether court should exercise discretion to extend time under Rule 4(m) despite no good cause	Plaintiffs requested additional time and attempted re-service after expiration	Defendants sought dismissal without prejudice for untimely service	Court exercised discretion to extend time 14 days after order (extended to Oct. 11, 2017) instead of dismissing
Whether motions under Rule 12(b)(6) should be decided now	Plaintiffs sought to proceed on merits	Defendants argued claims fail on their face	Court denied 12(b)(6) motions without prejudice to refiling after proper service

Aetna Bus. Credit, Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d 434 (5th Cir.) (proceedings are void without valid service; plaintiff bears burden to establish validity of service)
Thomas v. New Leaders for New Sch., 278 F.R.D. 347 (E.D. La.) (Rule 12(b)(5) dismissal for improper service)
Perez v. City of New Orleans, 173 F. Supp. 3d 337 (E.D. La.) (district court has broad discretion under Rule 12(b)(5))
Thompson v. Brown, 91 F.3d 20 (5th Cir.) (Rule 4(m) discretionary extension where good cause lacking)
Kersh v. Derozier, 851 F.2d 1509 (5th Cir.) (plaintiff bears burden to show good cause for missing Rule 4(m) deadline)
Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304 (5th Cir.) (good cause requires more than inadvertence or mistake)
In re Lenox Healthcare, Inc., 319 B.R. 819 (Bankr. D. Del.) (good faith and substantial diligence may support finding of good cause)