Opinion
Case No. 18-2482-EFM-JPO
03-26-2020
ELOY VELASCO BRISENO, and JANA HARRIS VELASCO, Plaintiffs, v. MARKETING AND MANAGEMENT SOLUTIONS, LLC, et al., Defendants.
MEMORANDUM & ORDER
Twelve Defendants remain in this multi-defendant case that seeks to recover funds lost to an alleged scam to purchase Plaintiffs' Mexican timeshare property. To date, Plaintiffs have accomplished service of process on only 2 of those 12 Defendants. Two matters pend in this case: (1) a February 10, 2020 Order (Doc. 49) directing Plaintiffs to show cause why this Court should not adopt an earlier recommendation (Doc. 22) to dismiss this case's unserved Defendants; and (2) Plaintiffs' Amended Motion for Default Judgment against Defendant Banco Mercantil del Norte, S.A. ("Banco Norte") (Doc. 55). For the reasons that follow, the Court adopts the earlier dismissal recommendation and sets Plaintiffs' default judgment motion for hearing.
On February 10, 2020, Judge Carlos Murguia ordered Plaintiffs to "show cause, on or before March 11, 2020, why [the Court] should not adopt Judge O'Hara's [July 1, 2019 Report and R]ecommendation and dismiss without prejudice for lack of service [D]efendants Buckley, Banorte USA, BBVA, Mario, Reyes, Corona, PRHometeus, VHM, Gaberi, and Titanium." The Court explained that Fed. R. Civ. P. 4(m)'s 90-day period for presumptively timely service on this case's nonforeign Defendants passed long ago; and, even for this case's foreign Defendants, the time to accomplish service is "not unlimited" but instead is dependent on Plaintiffs demonstrating that sustained reasonable efforts will effect service. The Court advised that "[a]bsent [P]laintiffs showing that continued diligence makes service of process eminent or feasible, dismissal will occur." Plaintiffs filed no response by the Court's March 11, 2020 deadline. Lacking any response from Plaintiffs or other proof that service has occurred, the Court now finds that (1) Plaintiffs have failed to show their continued diligence and (2) service of process is no longer eminent of feasible for Defendants Buckley, Banorte USA, BBVA, Mario, Reyes, Corona, PRHometeus, VHM, Gaberi, and Titanium. Accordingly, Judge O'Hara's recommendation is adopted, and those defendants are dismissed.
Doc. 49 at 6-7.
Id. at 5-7 (quoting Nylock Corp. v. Fastener World Inc., 396 F.3d 805, 806 (7th Cir. 2005)).
Id.
Under Fed. R. Civ. P. 55, Plaintiffs now seek default judgment against Banco Norte—one of this case's two remaining defendants. Rule 55(b)(2) authorizes this Court to conduct a hearing on Plaintiffs' motion if needed to "determine the amount of damages" or "investigate any other matter." The Court determines a hearing is needed. At such hearing, to be scheduled at a later time by further order of the Court, Plaintiffs should be prepared to:
(1) address whether this Court may exercise personal jurisdiction over Banco Norte, bearing in mind the personal-jurisdiction issues the Court has already outlined in its June 27, 2019 and February 10, 2020 Orders dismissing other of this case's foreign-bank Defendants;No later than 14 days in advance the hearing, Plaintiffs must file any supporting materials they wish the Court to consider prior to the hearing.
(2) identify the particular actions Banco Norte, as opposed to this case's other named Defendants, took in furtherance of the alleged claims of Fraud (Count II), Breach of Fiduciary Duty (Count IV), Fraudulent Misrepresentation (Count V), Negligent Misrepresentation (Count VI), Conversion (Count VII), and Civil Conspiracy (Count VIII); and
(3) support their claimed amount of damages, fees, and costs.
IT IS THEREFORE ORDERED that the Court adopts the dismissal recommendation outlined in Judge O'Hara's July 1, 2019 Order (Doc. 22). For the reasons set forth in Judge O'Hara's July 1, 2019 Order, Judge Murguia's February 10, 2020 Memorandum and Order, and this Order, Defendants James Allen Buckley; Banorte USA Corporation; BBVA Bancomer, S.A.; Mario Morales Ortiz Pena; Alejandro Garcia Reyes; Geraldo Reyes Corona; PRHometeus Consulting Group; VHM and Company; Gaberi Consultores, S.C.; and Titanium Inmobilarios Y Asociados, S.C., are dismissed for lack of service of process. These Defendants are terminated as parties in this case.
IT IS FURTHER ORDERED that a hearing on Plaintiffs' Motion for Default Judgment (Doc. 55) will be set. The Court will contact the parties to find an agreeable setting for the hearing. At that hearing, Plaintiffs should be prepared to address the issues enumerated in this order. Any materials Plaintiffs wish the Court to consider prior to that hearing, Plaintiffs must file no later than 14 days in advance of the hearing.
IT IS SO ORDERED.
Dated this 26th day of March, 2020.
/s/
ERIC F. MELGREN
United States District Judge