The opinion of the court was delivered by: A. CAPUTO, District Judge
Before me is Rule 12(b)(5) Motion to Quash Service and Rule
12(b)(6) Motion to Dismiss of Defendant, Mary Cook, R.N. (Doc.
Rule 12(b)(5) of the Federal Rules of Civil Procedure permits a
motion to dismiss for "insufficiency of service of process."
Fed.R.Civ.P. 12(b)(5). Rule 4(c) provides that the plaintiff is
responsible for service of a summons and complaint within the
time allowed under Rule 4(m). Rule 4(m) provides:
If service of the summons and complaint is not made
upon a defendant within 120 days after the filing of
the complaint, the court, upon motion or on its own
initiative, after notice to the plaintiff, shall
dismiss the action without prejudice as to that
defendant or direct that service be effected within a
specified time; provided that if the plaintiff shows
good cause for the failure, the court shall extend
the time for service for an appropriate period. This
subdivision does not apply to service in a foreign
country pursuant to subdivision (f) or (j)(1). Here the Complaint was filed February 1, 2005. As of this
Memorandum, service was not effected upon Defendant Cook.
Plaintiffs were led to believe that the County would accept
service for Defendant Cook, however, Defendant Cook was not an
employee of the County, and she was never served in accordance
with the Federal Rules of Civil Procedure. (See Affidavit of
Defendant Cook, Doc. 22, Ex. 4.) Moreover, there is no evidence
that she authorized any-one to accept service or execute a
Plaintiffs submitted a proposed order with their Brief in
Opposition to Rule 12(b)(5) Motion to Quash Service and Rule
12(b)(6) Motion to Dismiss Defendant, Mary Cook, R.N. (Doc. 25),
which orders the dismissal of the Motion of Defendant Cook and
also states "Plaintiffs are granted an extension of ______ days,
wherein they are to perfect service of the Initial Complaint upon
Mary Cook, R.N., and any other non-represented Defendants." (Doc.
25-2) This portion of the proposed order was unaccompanied by an
applicable motion. It was filed June 24, 2005, 134 days from the
filing of the Complaint. The Plaintiffs did nothing in the
meantime to serve Defendant Cook.
Based upon the foregoing history, and underscoring the
Plaintiffs' responsibility for service, it is appropriate to
grant the motion and dismiss the Complaint as to Defendant Cook.
Since I have determined the case against Defendant Cook should
be dismissed for failure of service, I will not consider the Rule
12(b)(6) portion of the motion.
An appropriate order follows. ORDER
NOW, this ____ day of November, 2005, IT IS HEREBY ORDERED
that the Complaint is DISMISSED as to Defendant, Mary Cook,
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