United States District Court, D. New Mexico
JOHN HULBERT COWGILL, Beneficiary John Hulbert Cowgill, on behalf of the Private Foreign Trust, Plaintiff,
PATRICK J. BURKE, President and Chief Executive Officer for HSBC BANK USA, N.A. as Trustee for Wells Fargo Asset Securities Corporation, Mortgage Pass-Through Certificates, Series 2007-7, Defendant.
Hulbert Cowgill Plaintiff pro se
A Brown Snell & Wilmer L.L.P. Attorneys for Defendant
MEMORANDUM OPINION AND ORDER ADOPTING THE CHIEF
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED
DISPOSITION, AND DISMISSING THE COMPLAINT WITHOUT
MATTER comes before the Court on the Chief
Magistrate Judge's Proposed Findings and Recommended
Disposition, filed July 20, 2017 (Doc.
14)(“PFRD”). No party has objected to the PFRD.
Because the Court concludes that the Honorable Karen B.
Molzen, Chief United States Magistrate Judge for the District
of New Mexico's conclusions and recommended disposition
in the PFRD are not clearly erroneous, arbitrary, obviously
contrary to law, or an abuse of discretion, the Court will
adopt the PFRD and dismiss this case without prejudice.
John Hulbert Cowgill filed his Complaint, filed December 1,
2016 (Doc. 1-1)(“Complaint”), in the Second
Judicial District, County of Bernalillo, State of New Mexico,
Cause No. D-202-CV-2016-07480. Defendant Patrick J. Burke
removed the case to federal court on February 17, 2017.
See Notice of Removal, filed February 17, 2017 (Doc.
1)(“Notice of Removal”). On March 3, 2017, Burke
filed a motion to dismiss the case asserting, among other
things, that Cowgill never properly served him with the
Complaint. See Motion to Dismiss Plaintiff's
Complaint at 4, filed March 3, 2017 (Doc. 5)(“Motion to
Dismiss”); Patrick J. Burke's Reply Supporting his
Motion to Dismiss Plaintiff's Complaint at 2, filed March
31, 2017 (Doc. 10)(“Reply”).
23, 2017, the Court referred this case to Chief Magistrate
Judge Karen B. Molzen for recommended findings and final
disposition. See Order of Reference Relating to
Bankruptcy Appeals, Social Security Appeals, Prisoner Cases,
Non Prisoner Pro Se Cases and Immigration Habeas Corpus
Proceedings, filed June 23, 2017 (Doc. 12)(“Referral
Order”). On June 30, 2017, the Chief Magistrate Judge
entered an Order to Show Cause, requiring Cowgill to serve
Burke properly or to provide the Court with a written
explanation showing good cause why service has not been made.
See Order to Show Cause, filed June 30, 2017 (Doc.
13)(“Cause Order”). Cowgill did not respond, and,
on July 20, 2017, Chief Magistrate Judge Molzen sua sponte
proposed that the Court dismiss the case without prejudice
because of Cowgill's apparent lack of interest in
properly litigating this matter. See PFRD at 1.
to the Recommended Disposition were due by August 3, 2017.
Neither party has objected.
REGARDING DISMISSAL UNDER RULE 4(m) OF THE FEDERAL RULES OF
obtain personal jurisdiction over a nonresident defendant in
a diversity action, a plaintiff must show that [(i)]
jurisdiction is legitimate under the laws of the forum state
and that [(ii)] the exercise of jurisdiction does not offend
the due process clause of the Fourteenth Amendment.”
Benton v. Cameco Corp., 375 F.3d 1070, 1075 (10th
Cir. 2004)(internal quotation marks omitted). “A
judgment entered absent sufficient service of process upon a
defendant violates due process and is void as to the
defendant for want of personal jurisdiction.” T.H.
McElvain Oil & Gas Ltd. P'ship v. Grp. I:
Benson-Montin-Greer Drilling Corp., 2017-NMSC-004, 388
P.3d 240, 248 (Vigil, J.), reh'g denied (Nov. 9,
2016), cert. denied sub nom. T.H. McElvain Oil & Gas
Ltd. P'ship v. Grp. I: Benson-Montin-Greer Drilling
Corp., 137 S.Ct. 1584 (2017).
service of process in state court is defective or incomplete,
28 U.S.C. § 1448 and rule 4(m) give the plaintiff a
deadline from the date defendant removes the case to federal
court in which the imperfect or defective service may be
cured. See Baumeister v. N.M. Comm'n for the
Blind, 409 F.Supp.2d 1351, 1352 (D.N.M. 2006)(Smith,
M.J.). See also Green v. Bank of Am., N.A., 2013 WL
11336861, at *2 (D.N.M. 2013)(Parker, J.); Fed.R.Civ.P. 4(m);
28 U.S.C. § 1448. “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.”
REGARDING OBJECTIONS TO PROPOSED FINDINGS AND
courts may refer dispositive motions to a Magistrate Judge
for a recommended disposition. See Fed.R.Civ.P.
72(b)(1) (“A magistrate judge must promptly conduct the
required proceedings when assigned, without parties'
consent, to hear a pretrial matter dispositive of a claim or
defense . . . .”). Rule 72(b)(2) governs objections:
“Within 10 days after being served with a copy of the
recommended disposition, a party may serve and file specific
written objections to the proposed findings and
recommendations.” Finally, when resolving objections to
a Magistrate Judge's proposal, “the district judge
must determine de novo any part of the magistrate judge's
disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter
to the magistrate judge with instructions.”
28 U.S.C. § 636 provides:
A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The
judge may also receive ...