Roman, Jr. et al v. Travelers Home and Marine Insurance Company et al

Filing 34

ORDER: IT IS ORDERED that the motion for default (Doc. 32 ) is denied; IT IS FURTHER ORDERED that the motion to dismiss for lack of service (Doc. 28 ) is denied; the motion to dismiss for lack of personal jurisdiction (Doc. 28 ) is denied without prejudice to refiling within 7 days [see attached Order for details]. Signed by Senior Judge James A Teilborg on 10/4/17.(MAW)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jose Roman, Jr., et al., Plaintiffs, 10 11 ORDER v. 12 No. CV-17-08151-PCT-JAT Travelers Home and Marine Insurance Company, et al., 13 Defendants. 14 15 Pending before the Court is Defendants Alan D. Schnitzer and Brian W. 16 MacLean’s motion to dismiss for failure to serve, and in the alternative motion to dismiss 17 for lack of personal jurisdiction. (Doc. 28).1 After this motion was filed, Plaintiffs filed a 18 proof of service for each of these Defendants.2 (Docs. 29 & 30). These proofs of serve 19 show service on August 9, 2017. Defendants’ motion to dismiss does not reference these 20 proofs of service. 21 Because Defendants have answered, the Court will not default them. Because 22 Plaintiffs have filed a proof of service for each Defendant, the Court will not dismiss for 23 lack of service. Because the motion to dismiss for lack of personal jurisdiction is part of 24 the motion to dismiss for lack of service, Defendants will have to re-file it as a its own 25 26 1 27 28 Without waiving these defenses, these two Defendants have also answered. (Doc. 33). 2 Service appears to be timely. See 28 U.S.C. § 1448; 4B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1137 (4th ed. 2015). 1 motion if they continue to assert the defense of lack of personal jurisdiction.3 2 Based on the foregoing, 3 IT IS ORDERED that the motion for default (Doc. 32) is denied; 4 IT IS FURTHER ORDERED that the motion to dismiss for lack of service (Doc. 5 28) is denied; the motion to dismiss for lack of personal jurisdiction (Doc. 28) is denied 6 without prejudice to refiling within 7 days. 7 Dated this 4th day of October, 2017. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3 28 If Defendants re-file, Defendants should not conflate arguments that Plaintiffs may fail to state a claim or may fail on summary judgment (for example, that Defendants are shielded by Travelers’ corporate form) with their personal jurisdiction arguments. -2-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?