Equivest Financial, LLC v. Bonicelli et al

Filing 16

OPINION AND ORDER: Accordingly, it is ORDERED that plaintiff Equivest Financial, LLC, Central Alabama show cause, if any there be, in writing by April 1, 2019, as to why its claims against defendants John Joseph Bonicelli, or his assigns or heirs if deceased; Sonya H. Bonicelli, or her assigns or heirs if deceased; and USAmeriBank, as successor by merger to Aliant Bank, should not be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m). Signed by Honorable Judge Myron H. Thompson on 3/11/2019. (kh, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
EQUIVEST FINANCIAL, LLC,
CENTRAL ALABAMA,

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Plaintiff,
v.
JOHN JOSEPH BONICELLI,
et al.,
Defendants.

CIVIL ACTION NO.
2:18cv606-MHT
(WO)

OPINION AND ORDER
Plaintiff Equivest Financial, LLC, Central Alabama
filed this case for ejectment and for a bill to quiet
title in state court on June 9, 2018.

The complaint

names five defendants: John Joseph Bonicelli, or his
assigns or heirs if deceased; Sonya H. Bonicelli, or
her

assigns

or

heirs

if

deceased;

USAmeriBank,

as

successor by merger to Aliant Bank; The United States;
the

State

of

parcel of land.

Alabama

Department

of

Revenue;

and

a

The United States removed this case to

this court on June 25, 2018.

Federal Rule of Civil Procedure 4(m) provides:
“If a defendant is not served within 90 days
after the complaint is filed, the court—on
motion or on its own after notice to the
plaintiff—must
dismiss
the
action
without
prejudice against that defendant or order that
service be made within a specified time. But if
the plaintiff shows good cause for the failure,
the court must extend the time for service for
an appropriate period.”
Fed. R. Civ. P. 4(m).

The time period under Rule 4(m)

starts on the date of removal to federal court, not the
date the case was filed in state court.

See, e.g.,

Cardenas v. City of Chicago, 646 F.3d 1001, 1004 (7th
Cir. 2011); Wallace v. Microsoft Corp., 596 F.3d 703
(10th Cir. 2010); see also 4B Fed. Prac. & Proc. Civ.
§ 1137 (4th ed.).

Thus, Equivest Financial had until

September 30, 2018, to serve the defendants.
Equivest Financial timely sought and received an
extension
until

of

time

November

10,

to

serve

2018.

the
See

Bonicelli
Motion

(doc. no. 7); Order (doc. no. 8).

for

defendants
Extension

That date has come

and gone, with no proof of service filed as to those

2

defendants.

It also appears that Equivest Financial

has not served defendant USAmeriBank.
***
Accordingly, it is ORDERED that plaintiff Equivest
Financial,

LLC,

Central

Alabama

show

cause,

if

any

there be, in writing by April 1, 2019, as to why its
claims against defendants John Joseph Bonicelli, or his
assigns or heirs if deceased; Sonya H. Bonicelli, or
her assigns or heirs if deceased; and USAmeriBank, as
successor

by

merger

to

Aliant

Bank,

should

not

be

dismissed without prejudice pursuant to Federal Rule of
Civil Procedure 4(m).
DONE, this the 11th day of March, 2019.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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