Baker v. Sedgwick Claims Management Services Inc et al

Filing 73

ORDER granting in part and denying in part 56 Motion to Amend/Correct; Motion for Order; denying 58 Motion to Dismiss; granting 65 Motion to Alter Judgment; denying 67 Motion to Quash. Signed by Judge James M. Moody on 3/20/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

DEBORAH BAKER
vs.

PLAINTIFF
NO. 4:11CV000015 JMM

THE PNC FINANCIAL SERVICES GROUP, INC.

THE PNC BANK CORP AND
AFFILIATES LONG TERM DISABILITY PLAN

DEFENDANT

COUNTERPLAINTIFF

V.
DEBORAH BAKER

COUNTERDEFENDANT
ORDER

Pending are Plaintiff’s motion to alter Judgment, docket #65, and the motions of
Defendant PNC Financial Services Group, Inc. to dismiss Plaintiff’s second amended complaint,
docket # 58 and to quash, docket # 67. Also pending is Plaintiff’s motion to amend her answer
to the Counterclaim, or in the alternative, to strike the counterclaim and for the entry of a
scheduling order. (Docket # 56).
On February 1, 2012, the Court entered an order dismissing The PNC Bank Corp and
Affiliates Long Term Disability Plan (“Plan”) based upon Plaintiff’s failure to serve the Plan
within the original 120 days allowed by the Federal Rules of Civil Procedure or the additional
sixty (60) days allowed by the Court. The Court’s Order was silent as to whether the dismissal
was with or without prejudice. The Order is hereby amended to state that the dismissal of the
Plan was WITHOUT PREJUDICE.
PNC Financial Services Group, Inc. argues that the Plaintiff’s Second Amended

Complaint should be dismissed for failure to serve it within the deadline set by Fed. R. Civ. P.
4(m). Plaintiff states that until her motion to correct misnomer, correcting the name of the
Defendant, was ruled upon, any attempt at service would have been improper as any summons
issued would have misnamed the Defendant. The Court finds that Plaintiff has stated good cause
to excuse her failure to serve the Defendant within the original time allowed by the Rules.
Plaintiff effectuated service on the Defendant on February 12, 2012. The Court hereby extends
the time in which to serve this Defendant, nunc pro tunc, to February 12, 2012.
In light of these rulings, Plaintiff’s motion for leave to file an amended answer to the
counterclaim is GRANTED; Plaintiff’s motion to strike the counterclaim is MOOT; Plaintiff’s
motion for a scheduling order is GRANTED. The Court will issue an ERISA scheduling Order
by separate Order. If Plaintiff believes she is entitled to a jury trial on any part of her claims or
the counterclaims filed, Plaintiff may file a separate motion outlining her arguments and
supporting authority.
Accordingly, Plaintiff’s motion to alter Judgment, docket #65, is GRANTED.
Defendant PNC Financial Services Group, Inc.’s motions to dismiss Plaintiff’s second amended
complaint and to quash, docket #’s 58 and 67 are DENIED. Plaintiff’s motion to amend, or in the
alternative to strike and for a scheduling order, docket # 56, is GRANTED IN PART AND
DENIED IN PART as set forth herein.
IT IS SO ORDERED this 20th day of March, 2012.

___________________________________
James M. Moody
United States District Judge

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