Valina, Inc. v. American Muffler et al

Filing 14

ORDER denying Luis Lopez's 11 Motion to Dismiss ; Plaintiff shall file a proper notice of dismissal or a status report by 9/26/08; the Clerk is directed to terminate this action without further notice if Plaintiff fails to comply with this order. Signed by Judge David G Campbell on 9/18/08.(REW, )

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WO

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Valina, Inc, dba Car Tex, a California corporation, Plaintiff, vs. American Muffler; and Carlos Lopez, Defendants.

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No. CV-08-1115-PHX-DGC ORDER

Plaintiff commenced this action by filing a complaint against American Muffler and Carlos Lopez on June 13, 2008. Dkt. #1. Plaintiff subsequently attempted to serve American Muffler with process by serving Luis Lopez, the purported owner of American Muffler, with copies of the summons and complaint. Dkt. #10. Luis Lopez has filed a motion to dismiss for insufficient service of process. Dkt. #11. Mr. Lopez asserts that he is neither the owner of American Muffler nor authorized to accept service on its behalf. Id. at 2. Mr. Lopez is not named as a defendant in the complaint, nor is he listed on the summons as a party to be served with process. See Dkt. ##1, 10. Mr. Lopez has not demonstrated that he has standing to seek dismissal of the claims asserted against American Muffler. The Court will therefore deny the motion to dismiss. It appears that Plaintiff wishes to voluntarily dismiss this action without prejudice pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure. Plaintiff has twice filed a notice of dismissal, but each time the notice erroneously listed the United States as plaintiff.

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Dkt. ##12-13. Plaintiff shall, by September 26, 2008, file either a proper notice of dismissal or a report regarding the status of the case. The case will be dismissed pursuant to Rule 41(b) if Plaintiff fails to comply with this order. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.1992) (district court did not abuse its discretion in dismissing plaintiff's complaint for failing to comply with an order). IT IS ORDERED: 1. 2. Luis Lopez's motion to dismiss (Dkt. #11) is denied. Plaintiff shall file a proper notice of dismissal or a status report by September 26, 2008. 3. The Clerk is directed to terminate this action without further notice if Plaintiff fails to comply with this order. DATED this 18th day of September, 2008.

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