2:24-cv-00148
M.D. Fla.
Apr 14, 2025

REGINALD L. HOWARD and SHARON GARDENER-HOWARD v. THE BANK OF NEW YORK MELLON, as trustee for the certificate holders CWABS, Inc., asset-backed certificates, series 2005-AB3, and DOES 1-100

Case No: 2:24-cv-148-JES-KCD

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

April 14, 2025

OPINION AND ORDER

This matter comes before the Court on defendant Bank of New York Mellon‘s Second Renewed Motion to Dismiss Complaint (Doc. #25) filed on February 28, 2025. No response has been filed and the time to respond has expired. An in-person Rule 16 Conference was scheduled for April 14, 2025. (Doc. #26.) Prior to the hearing, defendant filed a Notice of Inability to Prepare Case Management Report (Doc. #27). Plaintiffs did not respond and failed to appear at the hearing. (Doc. #29.)

On February 15, 2024, plaintiffs Reginald L. Howard and Sharon Gardener-Howard filed a Complaint (Doc. #1) disputing the title and ownership of real property located at 1202 Mimosa Avenue, Immokalee, Florida. Defendant Bank of New York Mellon argues that the Court lacks personal jurisdiction over it because it was never served with process or a copy of the complaint. (Doc. #25 at 5-6.) “Under Rule 12, a defendant must raise any challenge to the sufficiency of service of process in the first response to the plaintiff‘s complaint; i.e., the defendant must include the defense in either its pre-answer motion to dismiss, or if no pre-answer motion is filed, then the defense must be included in the defendant‘s answer.” Hemispherx Biopharma, Inc. v. Johannesburg Consol. Invs., 553 F.3d 1351, 1360 (11th Cir. 2008) (citations omitted). Bank of New York Mellon raised the issue in the first pre-answer response/motion to dismiss and the issue has not been waived. (Doc. #8.)

“A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.” Fed. R. Civ. P. 4(c)(1). While a Summons (Doc. #2) was issued in this case, defendant states that it was directed to “The Bank of New York Mellon Corporation” which is a different legal entity, and that the defendant subsidiary Bank of New York Mellon was never served pursuant to Fed. R. Civ. P. 4(h). Further, no proof of service was ever filed with the Court pursuant to M.D. Fla. R. 1.10(a). “‘Service of process is a jurisdictional requirement: a court lacks jurisdiction over the person of a defendant when that defendant has not been served.“’ Pouyeh v. Pub. Health Tr. of Jackson Health Sys., 718 F. App‘x 786, 790 (11th Cir. 2017) (quoting Pardazi v. Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990)). The motion to dismiss will be granted on this basis and otherwise denied pending the filing of an amended complaint as noted below.

The current Complaint is a shotgun pleading as written. “The most common type by a long shot is a complaint containing multiple counts where each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the entire complaint.” Weiland v. Palm Beach Cnty. Sheriff‘s Off., 792 F.3d 1313, 1321 (11th Cir. 2015). The incorporation of “all preceding paragraphs as though fully set forth herein” in all counts is improper. (Doc. #1 at ¶¶ 20, 28, 38, 46, 56, 66, 77, 88, 95, 101.) Therefore, plaintiffs will be required to file an Amended Complaint if they wish to proceed and to serve the Amended Complaint within the time provided pursuant to Federal Rule of Civil Procedure 4.

Accordingly, it is hereby

ORDERED:

  1. Plaintiffs’ Complaint (Doc. #1) is dismissed as a shotgun pleading without prejudice to filing an Amended Complaint within FOURTEEN (14) DAYS of this Opinion. If no Amended Complaint is filed, the case will be closed without further notice.
  2. Defendant Bank of New York Mellon‘s Second Renewed Motion to Dismiss Complaint (Doc. #25) is GRANTED to the extent that the Complaint is also dismissed for lack of service of process.
  3. If plaintiffs file an Amended Complaint, they shall further execute service of process within THIRTY (30) DAYS of the filing of an amended complaint. If plaintiffs fail to execute service of process in a timely manner, the case will be closed without further notice.

DONE and ORDERED at Fort Myers, Florida, this 14th day of April 2025.

JOHN E. STEELE

SENIOR UNITED STATES DISTRICT JUDGE

Copies:
Plaintiffs
Counsel of Record