Wells Fargo Bank, National Association, Trustee v. Moskoff, et al

1
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Wells Fargo Bank, National Association, as
Trustee for Option One Mortgage Loan Trust
2007-2, Asset-Backed Certificates, Series
2007-2
v.
David B. Moskoff et al.
Civil No. 17-cv-136-JL
REPORT AND RECOMMENDATION
Before 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 denied.
I. 	BACKGROUND
The 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. 34).
Case 1:17-cv-00136-JL Document 46 Filed 11/14/17 Page 1 of 6

2
In a 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).
Moskoff 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).
Moskoff’s motion to quash challenges service on two
grounds. First, Moskoff maintains that the amended complaint
and certificate of service do not properly identify Ms.
Fotiades, the person who actually accepted the service
Case 1:17-cv-00136-JL Document 46 Filed 11/14/17 Page 2 of 6

3
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.
II. 	SERVICE OF PROCESS
Federal 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.
Rockingham 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
Case 1:17-cv-00136-JL Document 46 Filed 11/14/17 Page 3 of 6

4
“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.
III. SUFFICIENCY OF PROCESS
Moskoff 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)).
Case 1:17-cv-00136-JL Document 46 Filed 11/14/17 Page 4 of 6

5
Furthermore, 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 any order adopting this report and recommendation.
Moskoff is advised that he rejects additional mail from
plaintiff’s counsel at his peril.
CONCLUSION
For the foregoing reasons, the undersigned recommends the
district judge:
A. Deny Moskoff’s motion to quash (Doc. No. 30);
B. To the extent that the request for alternative relief in
Moskoff’s “Verified Answer” can be construed as a motion to
dismiss for improper service (Doc. No. 14), that motion
should be denied.
C. Deny Moskoff’s request for the plaintiff to re-serve him
with the amended complaint (Doc. No. 14);
D. Order the plaintiff to mail another copy of the exhibits by
first class mail to Moskoff at P.O. Box 436, Newmarket, NH
03857, ensuring that mail is delivered to the post office
Case 1:17-cv-00136-JL Document 46 Filed 11/14/17 Page 5 of 6

6
box within seven (7) days of the date of the order adopting
this report and recommendation;
E. Allow Moskoff 24 days from the date the exhibits are mailed
to him to file an amended answer or other pleading
consistent with the Federal Rules of Civil Procedure and
this court’s Local Rules.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
R. Civ. P. 72(b)(2). The fourteen-day period may be extended
upon motion. Failure to file specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. See Santos-Santos v.
Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016); Fed. R. Civ.
P. 72(b)(2).
SO ORDERED.
/s/ Daniel J. Lynch
Daniel J. Lynch
United States Magistrate Judge
November 14, 2017
cc: 	Walter H. Porr, Jr., Esq.
David B. Moskoff, pro se
Daphne Fotiades, pro se
Peter M. Solomon, Esq.
Case 1:17-cv-00136-JL Document 46 Filed 11/14/17 Page 6 of 6