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Urrego v. White

United States District Court, E.D. Virginia, Richmond Division

July 26, 2018

NAZIRA URREGO, Plaintiff,
v.
SAMUEL I. WHITE, P.C., Defendant

          MEMORANDUM ORDER

          M. HANNAH LAUCK UNITED STATES DISTRICT JUDGE

         Plaintiff Nazira Urrego, proceeding pro se, brings this action against Defendant Samuel I. White, P.C. ("SIWPC"), alleging that SIWPC fraudulently tried to begin foreclosure proceedings on her property in violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1962, et seq., and Virginia state law.

         On June 12, 2017, Urrego filed a Complaint against SIWPC. The next day, the Clerk's Office for the Richmond Division of the Eastern District of Virginia issued a summons identifying "Lisa Hudson" as the person intended for service. (ECF No. 2.) On August 28, 2017, Urrego returned the summons executed. (ECF No. 3.) On September 19, 2017, Lisa Hudson Kim filed with the Court a letter[1] addressed to Urrego. (Aug. 10, 2017 Letter, ECF No. 4.) In the letter, Kim stated that a private process server attempted to serve Urrego's Complaint on August 9, 2017, but that "service was rejected" because Kim is "not the registered agent for SIWPC." (Id.)

         On September 18, 2017, Urrego, asserting proper service on SIWPC, filed a Motion for Default Judgment, contending that, as of September 15, 2017, "more than twenty-one days[] had elapsed since the service of said complaint and Summons upon defendant and no answer thereto having been served by defendant [on Urrego]," and asking the Court to enter default judgment against SIWPC. (Mot. Default J. 2, ECF No. 5.) On October 27, 2017, SIWPC, by special appearance, moved to strike Urrego's Returned Summonses and opposed Urrego's motion for default judgment. (ECF No. 6.) On December 12, 2017, the Court struck Urrego's Returned Summonses and granted Urrego thirty days to properly serve SIWPC via the correct registered agent, William Adam White. (ECF No. 8.)

         On January 18, 2018, Urrego returned the re-issued summons as unexecuted. (ECF No. 10.) On the section of the Affidavit of Service where the manner of service is described, the private process server selected "Not Found." (Aff. Serv. 2, ECF No. 10.) The same day that the SIWPC summons was returned unexecuted, Urrego filed her Second Motion for Default Judgment, despite failing to properly serve SIWPC. (ECF No. 11.) On January 24, 2018, SIWPC, again by special appearance, filed two separate motions: a Motion to Strike Plaintiffs' Affidavit of Service ("SIWPC's Motion to Strike"), (ECF No. 12), and a Motion to Dismiss Urrego's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(5)[2] and 12(b)(6).[3] (ECF No. 13.)

         On February 23, 2018, Urrego filed a Motion to Strike SIWPC's Affirmative Allegations and Defenses ("Urrego's Motion to Strike"). (ECF No. 18.) Finally, on June 4, 2018, Urrego filed a Third Motion for Default Judgment. (ECF No. 25.)

         The Court referred all of the above motions to the Honorable David J. Novak, United States Magistrate Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B). (ECF Nos. 24, 27.) On July 3, 2018, the Magistrate Judge filed a Report and Recommendation ("R&R"). (ECF No. 28.) The Magistrate Judge recommended that:

(1) Urrego's Second Motion for Default Judgment, (ECF No. 11), and Third Motion for Default Judgment, (ECF No. 25), be denied;
(2) SIWPC's Motion to Strike, (ECF No. 12), be denied;
(3) SIWPC's Motion to Dismiss pursuant to Rule 12(b)(5), (ECF No. 13), be construed as a motion to quash service and granted;
(4) SIWPC's Motion to Dismiss pursuant to Rule 12(b)(6), (ECF No.13), be granted;
(5) Urrego's Motion to Strike, (ECF No. 18), be denied;
(6) Urrego's state law fraud claim be dismissed without prejudice; and
(7) Urrego be granted one final thirty-day extension to ...

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