United States District Court, D. New Hampshire
Wells Fargo Bank, National Association, as Trustee for Option One Mortgage Loan Trust 2007-2, Asset-Backed Certificates, Series 2007-2
David B. Moskoff et al.
REPORT AND RECOMMENDATION
J. Lynch United States Magistrate Judge.
the court is a motion to quash service filed by David B.
Moskoff (“Moskoff”). (Doc. No. 30). For the
reasons that follow, the court recommends the motion be
plaintiff initiated this action against Moskoff and other
defendants on April 11, 2017. (Doc. No. 1). The plaintiff
subsequently filed an amended complaint on April 12, 2017,
before the court had issued summonses for service of process.
(Doc. No. 3). On June 6, 2017, the plaintiff filed a
certificate of service as to Moskoff. (Doc. No. 9). In a
subsequent affidavit, plaintiff's counsel's paralegal
avers that the service package included, inter alia, a copy
of the original complaint, a copy of all 19 exhibits
referenced in both the original complaint and in the amended
complaint, and a copy of the amended complaint. (Doc. No.
document entitled “Verified Answer, ” Moskoff
does not state that the exhibits were not part of the service
package, but appears to take issue with the fact the exhibits
were not attached to the amended complaint itself. (Doc. No.
14). Apparently in response to Moskoff's Verified Answer,
plaintiff's counsel subsequently mailed a copy of the
amended complaint with exhibits to Moskoff at 29-32 Seacliff
Bay Road, Newmarket, New Hampshire. (Doc. No. 20). Moskoff
represents that he returned this mailing to plaintiff's
counsel on July 3, 2017, apparently in order to preserve his
objection to service as well as his objections to various
aspects of this case as plead. (Doc. No. 24).
then filed the instant motion to quash based on ineffective
service of process. (Doc. No. 30). In an objection to that
motion, the plaintiffs again attached the exhibits to the
amended complaint. (Doc. No. 34-4). Moskoff apparently
returned the package containing the objection and attached
exhibits to plaintiff's counsel based on his contention
that it was improperly addressed in his name as well as
“Daphne Moskoff.” (Doc. No. 37 at 1).
motion to quash challenges service on two grounds. First,
Moskoff maintains that the amended complaint and certificate
of service do not properly identify Ms. documents, rendering
service ineffective. Second, Moskoff claims service is
improper because the exhibits referenced in the amended
complaint were not attached to the document. The court will
address these arguments seriatim.
SERVICE OF PROCESS
Rule of Civil Procedure 4 governs service of process. An
individual may be served by “leaving a copy of [the
summons and of the complaint] at the individual's
dwelling or usual place of abode with someone of suitable age
and discretion who resides there[.]” Fed.R.Civ.P.
4(e)(2)(B). Alternatively, an individual may be served by
“following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where
the district court is located or where service is
made.” Fed.R.Civ.P. 4(e)(1). Under this provision,
service is proper if it complies with New Hampshire service
law, which is the state where this court is located and where
service was made. Under New Hampshire law, “All writs
and other processes shall be served by giving to the
defendant or leaving at his abode an attested copy thereof,
except in cases otherwise provided for.” RSA 510:2.
County Deputy Sheriff Michael E. Chavez states that on May
30, 2017, at 22 Bayview Drive, Newmarket, New Hampshire, he
personally served the summons and complaint on “DAPHNE
FOTIADES FOR DAVID B MOSKOFF.” (Doc. No. 9 at 1). As
noted above, Moskoff makes much of the purported misnomer of
Fotiades in the amended complaint and return of service.
Moskoff points to no case authority or rule to support his
position that a misnomer in the return of service document
invalidates in hand service. He also does not contest that
the sheriff's deputy made service at Moskoff's
dwelling or usual place of abode. Nor does he make any claim
that the deputy did not leave the documents with someone of
suitable age and discretion who resides there. Indeed, under
New Hampshire law, service is proper if process is simply
left at the individual's abode. Based on this record,
there is no question that service is proper under both the
Federal Rules of Civil Procedure and New Hampshire law.
SUFFICIENCY OF PROCESS
objects to the sufficiency of process based on his contention
that the exhibits were not physically attached to the amended
complaint in the service package. Moskoff points to no case
authority or rule to support his position. To the contrary,
“exhibits attached to plaintiffs' original
complaint are deemed ‘incorporated into the [amended]
complaint' even though the exhibits were not physically
attached to it.” Rocket Learning, Inc. v.
Rivera-Sánchez, 851 F.Supp.2d 384, 390 (D.P.R.
2012)(citing Trans-Spec Truck Serv., Inc. v. Caterpillar,
Inc., 524 F.3d 315, 321 (1st Cir. 2008)).
on two subsequent occasions, plaintiff's counsel
attempted to mail copies of the exhibits to Moskoff. Both
times, Moskoff chose to return the mail. To avoid wasting
more time of the litigants and of the court, the undersigned
directs plaintiff's counsel to mail one additional copy
of the exhibits to Moskoff at P.O. Box 436, Newmarket, NH
03857, which is the address that Moskoff has provided the
court. (Doc. No. 14 at 13). The exhibits should be mailed
within seven (7) days of the date of ...