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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jose Roman, Jr., et al.,
Plaintiffs,

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ORDER

v.

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No. CV-17-08151-PCT-JAT

Travelers Home and Marine Insurance
Company, et al.,

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Defendants.

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Pending before the Court is Defendants Alan D. Schnitzer and Brian W.

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MacLean’s motion to dismiss for failure to serve, and in the alternative motion to dismiss

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for lack of personal jurisdiction. (Doc. 28).1 After this motion was filed, Plaintiffs filed a

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proof of service for each of these Defendants.2 (Docs. 29 & 30). These proofs of serve

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show service on August 9, 2017. Defendants’ motion to dismiss does not reference these

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proofs of service.

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Because Defendants have answered, the Court will not default them. Because

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Plaintiffs have filed a proof of service for each Defendant, the Court will not dismiss for

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lack of service. Because the motion to dismiss for lack of personal jurisdiction is part of

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the motion to dismiss for lack of service, Defendants will have to re-file it as a its own

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Without waiving these defenses, these two Defendants have also answered.
(Doc. 33).
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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).

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motion if they continue to assert the defense of lack of personal jurisdiction.3

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Based on the foregoing,

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IT IS ORDERED that the motion for default (Doc. 32) is denied;

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IT IS FURTHER ORDERED that the motion to dismiss for lack of service (Doc.

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28) is denied; the motion to dismiss for lack of personal jurisdiction (Doc. 28) is denied

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without prejudice to refiling within 7 days.

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Dated this 4th day of October, 2017.

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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.
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