Houser v. O'Neil

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LECRESHA RENAE HOUSER, )

)

Plaintiff, )

)

v. ) Case No. 2:24-cv-00503-SGC

)

SEAN B. O’NEIL, et al., )

)

Defendants. )

MEMORANDUM OPINION1

This is an action brought against Sean B. O’Neil, Tracy Anne Pangillinan,

Brett Seybold, and Patrick M. Marshall (collectively, “the defendants”) by Lecresha

Renae Houser (“the plaintiff”), proceeding pro se.2 The action arises from a dispute

regarding the plaintiff’s home mortgage. Pending before the court are three motions:

(1) the plaintiff’s motion seeking default judgments against the defendants, (2) the

defendants’ motion to dismiss for insufficient service of process under Rule 12(b)(4)

of the Federal Rules of Civil Procedure or lack of personal jurisdiction under Rule

12(b)(2) of those rules, and (3) the defendants’ motion to strike the plaintiff’s

amendment to her original pleading on the ground it is not proper under Rule 15(a)

1 The parties have consented to the exercise of dispositive jurisdiction by a magistrate judge

pursuant to 28 U.S.C. § 636(c). (Doc. 16).

2 The court adopts the spellings of the defendants’ names employed by the plaintiff in her original

pleading. (Doc. 1 at 2).

of the Federal Rules of Civil Procedure. (Docs. 10, 11, 23).3 For the reasons stated

below, the court will deny the first and third motions. The court will grant the second

motion on the basis of the defendants’ personal jurisdiction argument and dismiss

all claims against the defendants without prejudice.

I. Procedural History

The plaintiff commenced this action by filing a civil complaint form on April

22, 2024, and thereafter paying the $405.00 filing and administrative fees. (Doc. 1).

The court entered an order on September 16, 2024, directing the plaintiff to show

cause why the action should not be dismissed under Rule 4(m) of the Federal Rules

of Civil Procedure for failure to serve the defendants within 90 days of April 22,

2024. (Doc. 9). In response, the plaintiff filed a motion seeking default judgments

against the defendants on September 17, 2024, attached to which are service return

receipts purported to have been executed on behalf of O’Neil, Pangillinan, Seybold,

and Marshall in mid- to late-August 2024. (Doc. 10). The defendants then filed a

motion to dismiss on September 30, 2024, arguing the plaintiff failed to effectuate

proper service of process on them and failed to plead factual allegations showing the

court has personal jurisdiction over them. (Doc. 11). The parties have fully briefed

the motion to dismiss. (Docs. 11-15). Finally, as relevant here, the plaintiff filed an

3 Citations to the record refer to the document and page numbers assigned by the court’s CM/ECF

electronic document system and appear in the following format: (Doc. __ at __).

amendment to her original pleading on December 12, 2024. (Doc. 23). As indicated,

the defendants have moved to strike the amendment on the ground it is not proper

under Rule 15. (Doc. 24).

II. Plaintiff’s Factual Allegations4

The plaintiff lives in Pinson, Alabama. (Doc. 1 at 1). The defendants appear

to be officers or employees of one or more mortgage-related entities, including the

entity formerly known as PHH Mortgage Services. (Doc. 1 at 2-3).5 The plaintiff

lists addresses for the defendants in Florida, New Jersey, and Delaware. (Doc. 1 at

2). Broadly speaking, the plaintiff alleges PHH Mortgage continues to attempt to

collect a debt from her that she does not owe to PHH Mortgage. (See generally

Docs. 1, 3, 12, 14, 15, 21, 22, 24, 25). The defendants’ involvement in this conduct

is limited to the plaintiff’s allegations O’Neil, Pangilinan, and Marshall failed to

close her account with PHH Mortgage and did not return an “International Bill of

Exchange” she sent to PHH Mortgage. (Doc. 22 at 1-2). The plaintiff cites a litany

of federal statutes and regulations in her submissions to the court that she appears to

4 The court largely has excluded from its recitation of the plaintiff’s factual allegations those

allegations that are not material to the pending motions. Some immaterial factual allegations are

included for context. The court has considered all the plaintiff’s submissions to the court in

identifying material, factual allegations, including the plaintiff’s amendment to her original

pleading. (Docs. 1, 3, 12, 14, 15, 21, 22, 24, 25). As noted, the defendants have moved to strike

the amendment, and the court will explain below why the motion is not meritorious.

5 The plaintiff alleges PHH Mortgage now is known as Onity Mortgage. (Doc. 22 at 2). The court

adopts the plaintiff’s naming convention and refers to the entity as PHH Mortgage.

claim provide causes of action for the defendants’ conduct. (Doc. 1 at 4; Doc. 3 at

3-5; Doc. 12 at 3-5; Doc. 14 at 4-7; Doc. 22 at 2-5).6 She alleges she has suffered

mental distress as a result of the conduct and requests $15,000,000 in damages.

(Doc. 1 at 5; Doc. 22 at 1-2).

III. Discussion

A. Motion Seeking Default Judgments

A defendant generally must file a responsive pleading within twenty-one days

after being served with a summons and complaint. See FED. R. CIV. P. 12. A

defendant who fails to comply with this requirement risks a default judgment. See

FED. R. CIV. P. 55.

Rule 55 of the Federal Rules of Civil Procedure generally provides a two-step

process for a plaintiff to obtain a default judgment against a defendant who has failed

to plead or otherwise defend against a claim within the time prescribed by the

Federal Rules of Civil Procedure. Daise v. Washington, 2022 WL 405404, at *2

(11th Cir. Feb. 10, 2022). First, the plaintiff must apply to the clerk for an entry of

default against the defendant. Id. (citing FED. R. CIV. P. 55(a)). Second, after the

clerk enters the default, the plaintiff must apply to the court for a default judgment

against the defendant. Id. (citing FED. R. CIV. P. 55(b)).7 A motion for default

6 The court construes the plaintiff’s submissions as asserting the existence of a federal question as

the basis for federal subject matter jurisdiction. See 28 U.S.C. § 1331.

7 Proper service of process is a prerequisite to both an entry of default and a default judgment. A

judgment filed before a plaintiff has applied for or obtained an entry of default from

the clerk is subject to denial. See Dimanche v. Orlando Police Dep’t, 2025 WL

561436, at *5 (11th Cir. Feb. 20, 2025) (holding district court did not abuse its

discretion by denying motion for default judgment where clerk had not yet entered

default).

There are circumstances where a technical default is not followed by an entry

of default or a default judgment. Where a defendant appears in an untimely manner

and “indicates a desire to contest an action,” an entry of default may be refused, or

a motion for default judgment denied, on a discretionary basis. Wendt v. Pratt, 154

F.R.D. 229, 230 (D. Minn. 1994) (internal quotation marks omitted) (citing 10

WRIGHT & MILLER, FED. PRAC. & PROC. CIV. § 2682 (2d ed. 1983)); see also Stevens

v. Holder, 2015 WL 13691280, at *10 (N.D. Ga. July 31, 2015) (exercising

discretion to deny motion for entry of default where defendants did not file answer

to first amended complaint but filed two summary judgment motions indicating

desire to defend against claim asserted in pleading) (citing 10A WRIGHT & MILLER,

FED. PRAC. & PROC. CIV. § 2682 (3rd ed. 2015)), aff’d sub nom. Stevens v. Osuna,

877 F.3d 1293 (11th Cir. 2017). Considerations that weigh in favor of denial include

a defendant’s short delay in appearing to defend against a claim and the absence of

defendant on whom effective service of process has not been made has no obligation to defend

against a claim, and without an obligation, there can be no default warranting action by the clerk

or the court. ASF Global, LLC v. Soft-Tex Int’l, Inc., 2022 WL 2080860, at *1 (S.D. Ala. June 9,

2022) (citing 10 WRIGHT & MILLER, FED. PRAC. & PROC. CIV. § 2682 (3d ed. 1998)).

prejudice to the plaintiff. See Wendt, 154 F.R.D. at 231 (denying motion for default

judgment where defendant filed answer to complaint twenty-four days late and

plaintiffs acknowledged they had not been prejudiced by the “inconsequential . . .

short-term delay”); Stevens, 2015 WL 13691280, at *10 (noting plaintiff failed to

show she had been prejudiced by defendants’ failure to answer first amended

complaint); Mitchell v. Nassau Cnty. School Bd., 2022 WL 22439925, at *1 (M.D.

Fla. Dec. 28, 2022) (holding entry of default would not be warranted because

defendants appearance in case was only fourteen days late and plaintiff failed to

show prejudice).

The motion pending here is subject to denial because the plaintiff did not

apply for or obtain entries of default against the defendants before seeking default

judgments against them. Even assuming the plaintiff first had obtained entries of

default against the defendants, the pending motion would fare no better. The delay

here was short – the plaintiff purports to have served the defendants with process in

mid- to late-August 2024, she filed her motion seeking default judgments against the

defendants on September 17, 2024, and the defendants appeared and filed their

motion to dismiss on September 30, 2024 – and the plaintiff has failed to demonstrate

any resulting prejudice.8

8 This assumes the plaintiff effected proper service of process on the defendants. The defendants

contest the sufficiency of service and, absent proper service of process, there would be no basis

for an entry of default or a default judgment and no reason to reach discretionary considerations.

B. Motion to Strike

Rule 15(a) permits a party to amend a pleading once as a matter of course

within twenty-one days after serving the pleading or, if the pleading is one to which

a responsive pleading is required, within twenty-one days after service of a

responsive pleading. FED. R. CIV. P. 15(a)(1). Thereafter, a party must obtain either

the opposing party’s written consent or leave of court. FED. R. CIV. P. 15(a)(2). The

rule instructs that a court “should freely give leave when justice so requires.” Id.

“The Supreme Court has emphasized that leave to amend must be granted absent a

specific, significant reason for denial.” Spanish Broadcasting Sys. of Florida, Inc.

v. Clear Channel Comms., Inc., 376 F.3d 1065, 1077 (11th Cir. 2004) (citing

Forman v. Davis, 371 U.S. 178, 182 (1962)). While the grant of leave to amend is

within the discretion of a federal district court, “ ‘unless there is a substantial reason

to deny leave to amend, the discretion of the district court is not broad enough to

permit denial.’” Burger King Corp. v. Weaver, 169 F.3d 1310, 1319 (11th Cir. 1999)

(citing Smith v. Duff and Phelps, Inc., 5 F.3d 488, 493 (11th Cir. 1993); quoting

Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir. 1981)). Reasons

warranting denial include “ ‘undue delay, bad faith or dilatory motive on the part of

the movant, repeated failure to cure deficiencies by amendments previously allowed,

undue prejudice to the opposing party by virtue of allowance of the amendment,

[and] futility of amendment . . . .’” Spanish Broadcasting Sys. of Florida, 376 F.3d

at 1077 (quoting Forman, 371 U.S. at 182).

Here, the plaintiff filed the amendment to her original pleading on December

12, 2024, more than twenty-one days after filing the original pleading on April 22,

2024, and more than twenty-one days after the defendants filed their responsive

pleading (i.e., their motion to dismiss) on September 30, 2024. Therefore, the

amendment is permissible only with the defendants’ consent, which the plaintiff

does not have, or leave of court.

The court will exercise its discretion to construe the amendment as including

a request for leave to amend. See Rivas v. The Bank of New York Mellon, 676 F.

App’x 926, 932 n.6 (11th Cir. 2017) (holding district court was “well within its

discretion” to treat plaintiff’s assertion he had a right to amend complaint as motion

for leave to file amended complaint). Moreover, the court will grant the request and

treat the amendment as a supplement to the original pleading instead of as an

independent, superseding pleading. See, e.g., Harpe v. Lawler, 2023 WL 2317292,

at *2 (N.D. Ga. Mar. 1, 2023) (construing amended pleading filed by pro se plaintiff

as supplement to earlier-filed pleading instead of as independent, superseding

pleading). Finally, the court will treat the defendants’ motion to dismiss as directed

toward the plaintiff’s original pleading and the amendment supplementing the

original pleading because the alleged defects in the former remain in the latter. See

6 WRIGHT & MILLER, FED. PRAC. & PROC. CIV. § 1476 (3d ed. 2025) (“[D]efendants

should not be required to file a new motion to dismiss simply because an amended

pleading was introduced while their motion was pending. If some of the defects

raised in the original motion remain in the new pleading, the court simply may

consider the motion as being addressed to the amended pleading. To hold otherwise

would exalt form over substance.”).

The court acknowledges there may be a ground to deny the request as futile.

As discussed in the following section, the defendants’ motion to dismiss for lack of

personal jurisdiction is due to be granted even given full consideration of the

amendment. In other words, the alleged defects in the original pleading and the

amendment supplementing the original pleading are actual defects. However, the

futility of the request also means that allowing amendment will not prejudice the

defendants. The defendants obtain the result they seek regardless of whether the

court takes the amendment into account when ruling on their motion to dismiss.

Moreover, the amendment is helpful to the court insofar as it clarifies to some extent

the circumstances giving rise to this action.

C. Motion to Dismiss

There are two types of personal jurisdiction: general and specific. Goodyear

Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923-24 (2011). General

jurisdiction lies in the forum where a defendant is domiciled or “fairly regarded as

at home.” Fuld v. Palestine Liberation Org., 606 U.S. 1, 12 (2025) (internal

quotation marks omitted). The plaintiff does not allege, and there is no evidence,

any defendant is domiciled in Alabama or fairly regarded as at home in the forum.

The plaintiff’s identification of addresses in Florida, New Jersey, and Delaware for

the defendants suggests the opposite. Therefore, specific is the only type of personal

jurisdiction at issue here.

The plaintiff bears the burden of alleging sufficient facts in her complaint to

make out a prima facie case of specific jurisdiction over a non-resident defendant.

Diamond Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593 F.3d 1249, 1257 (11th

Cir. 2010). An Alabama federal district court may exercise specific jurisdiction over

a non-resident defendant if (1) there is a statutory basis for exercising such

jurisdiction and (2) the exercise satisfies federal constitutional due process

requirements. Courboin v. Scott, 596 F. App’x 729, 732 (11th Cir. 2014). The

statutory basis for exercising specific jurisdiction may be a federal statute or the

long-arm statute of the state in which a federal court sits. Id. The plaintiff here cites

a litany of federal statutes in her submissions to the court. (Doc. 1 at 4; Doc. 3 at 3-

5; Doc. 12 at 3-5; Doc. 14 at 4-7; Doc. 22 at 2-5). However, she does not claim any

of them provide the statutory basis for exercising specific jurisdiction over the

defendants. Therefore, the statutory basis must be found in Alabama’s long-arm

statute, codified at Rule 4.2(b) of the Alabama Rules of Civil Procedure. Because

that statute permits the exercise of specific personal jurisdiction over a non-resident

defendant “to the fullest extent” permissible under the U.S. Constitution, the two-

pronged inquiry set out above collapses into a single question: whether the exercise

of specific jurisdiction over the defendants satisfies due process requirements. Sloss

Indus. Corp. v. Eurisol, 488 F.3d 922, 925 (11th Cir. 2007).

The exercise of specific jurisdiction satisfies federal due process requirements

if (1) a plaintiff’s claims arise out of or relate to one of the defendant’s contacts with

the forum state, (2) the defendant purposefully availed himself of the privileges of

conducting activities in the forum state, and (3) the exercise of personal jurisdiction

would not offend traditional notions of fair play and substantial justice. SkyHop

Techs., Inc. v. Narra, 58 F.4th 1211, 1229 (11th Cir. 2023) (internal quotation marks

omitted). A plaintiff bears the burden of establishing the first two requirements. Id.

at 1229. If a plaintiff succeeds in making the showing, the burden shifts to the

defendant to make a compelling case the exercise of jurisdiction would be improper.

Id.

There are two tests for determining whether a defendant purposefully availed

himself of the privilege of conducting activities in the forum state. The “minimum

contacts test” – the traditional test – identifies all the defendant’s contacts with the

forum state and asks whether, individually or collectively, the contacts (1) are related

to the plaintiff’s claim, (2) involve an act by which the defendant purposefully

availed himself of the privileges of conducting activities in the forum state, and (3)

are such that the defendant should reasonably anticipate being haled into court in the

forum state. Del Valle v. Trivago GMBH, 56 F.4th 1265, 1276 (11th Cir. 2022).

The “effects test” contemplates that a non-resident defendant’s single tortious act

may establish purposeful availment. Id. The test is met when the tortious act was

intentional, aimed at the forum state, and caused harm the defendant should have

anticipated would be suffered in the forum state. Id.

The plaintiff has failed to make out a prima facie case of specific jurisdiction

under the minimum contacts test or the effects test, even liberally construing the

scattershot factual allegations she has presented to the court. See Erickson v. Pardus,

551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed, and a

pro se complaint, however inartfully pleaded, must be held to less stringent standards

than formal pleadings drafted by lawyers.”) (internal quotation marks and citations

omitted). The plaintiff makes no allegation as to any act undertaken, or omission

made, by Seybold. She alleges O’Neil, Pangillinan, and Marshall failed to close her

account with PHH Mortgage and did not return an “International Bill of Exchange”

she sent to PHH Mortgage. (Doc. 22 at 1-2). In other words, she alleges that when

she, from inside Alabama, directed communications outside Alabama to PHH,

O’Neil, Pangillinan, and Marshall, also located outside Alabama, did nothing. This

falls short of showing O’Neil, Pangillinan, and Marshall purposely availed

themselves of the privileges of conducting activities in Alabama, such that they

should reasonably anticipate being haled into court in the state. See, e.g., Casey v.

AT&T, Inc., 2024 WL 2264227, at *2 (N.D. Fla. Feb. 14, 2024) (holding allegations

that defendant, the vice president of a bank, failed to respond to mail directed to her

in Texas by plaintiff located in Florida were insufficient to support exercise of

specific jurisdiction by Florida federal district court), report and recommendation

adopted, 2024 WL 2261115 (N.D. Fla. May 17, 2024). Moreover, while a liberal

construction of the plaintiff’s submissions suggest she claims to have felt the effects

of the defendants’ conduct in Alabama, the fact that a plaintiff felt the effects of

alleged intentional tortious conduct in the forum state does not allow a court in the

forum state to exercise specific jurisdiction over the alleged tortfeasor. The effects

test requires not only that the effects of intentional tortious conduct have been felt in

the forum state but also that intentional tortious conduct responsible for the effects

have been aimed at the forum state. See Del Valle, 56 4th at 1276 (articulating test).9

The plaintiff argues the fact that the defendants reside and work in the United

States gives this court personal jurisdiction over them. (Doc. 15 at 1). Put simply,

9 See also IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 263 (3d Cir. 1998) (“[T]he mere allegation

that the plaintiff feels the effect of the defendant’s tortious conduct in the forum because the

plaintiff is located there is insufficient to satisfy [the effects test]. . . . “[T]he plaintiff[] [must] point

to other actions that adequately demonstrate[] that the defendants targeted (or “expressly aimed”

their conduct at) the forum, and thereby show[] that the forum was the focal point of the tortious

activity.”); DocRX, Inc. v. DOX Consulting, LLC, 738 F. Supp. 2d 1234, 1250 (S.D. Ala. 2010)

(citing IMO Indus. favorably); cf. Ex parte Gregory, 947 So. 2d 385, 394-96 (Ala. 2006)

(recognizing “most courts define the [effects] test as requiring something more than mere

awareness that one’s intentional acts will cause harm in the forum state” and adopting the same

requirement); Ashton v. Florala Mem’l Hosp., 2006 WL 2864413, at *10 (M.D. Ala. Oct. 5, 2006)

(same).

she is wrong. As stated, the question is whether the defendants have purposefully

availed themselves of the privileges of conducting activities in the forum state, and

as discussed, the plaintiff's allegations do not allow the court to answer the question

in the affirmative. Accordingly, the court will grant the defendants’ motion to

dismiss for lack of personal jurisdiction and dismiss all claims against the defendants

without prejudice. See Posner v. Essex Ins. Co., 178 F.3d 1209, 1221 (11th Cir.

1999) (instructing district court to dismiss claims as to which personal jurisdiction

was lacking without prejudice instead of with prejudice). !°

IV. Conclusion

For the reasons stated above, the court DENIES the plaintiff's motion seeking

default judgments against the defendants. (Doc. 10). The court also DENIES the

defendants’ motion to strike the plaintiffs amendment to her original pleading.

(Doc. 23). The court GRANTS the defendants’ motion to dismiss for lack of

personal jurisdiction under Rule 12(b)(2) and will DISMISS all claims against the

defendants WITHOUT PREJUDICE. A separate order will be entered.

DONE this 29th day of September, 2025.

La 4. Crenibios

STACI G. CORNELIUS

U.S. MAGISTRATE JUDGE

‘0 The court declines to address the defendants’ alternative argument for dismissal (i.e., insufficient

service of process).

14