Collins v. Bentley et al

Filing 28

REPORT AND RECOMMENDATIONS re 13 MOTION to Dismiss, MOTION to Quash filed by Bentley Marine Group, LLC, Bentley Industries, LLC. Objections to R&R due by 3/8/2010. Signed by Honorable Barry A. Bryant on February 16, 2010. (dmc)

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IN THE UNITED STATES DISTRICT COURT WE S T ER N DISTRICT OF ARKANSAS H O T SPRINGS DIVISION G LE N COLLINS T A U N A COLLINS In d ivid u a lly and as Guardians of J.C ., A Minor Child v. Cause No. 6:09-cv-06090 DEFENDANTS PLAINTIFFS BENTLEY INDUSTRIES, LLC, B E N T LE Y MARINE GROUP, LLC, COOSAW CAPITAL PARTNERS, LLC, LA R R Y D. BREHM, and STEVE DEESE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE O n December 16, 2009, Defendants Bentley Industries, LLC and Bentley Marine Group, LLC ("B en tley" ) filed a Motion to Dismiss and Motion to Quash. (Doc. No. 13). These motions were referred to this Court on February 9, 2010. (Doc. No. 27). With these motions, Bentley seeks to dismiss this case p u rsu an t to FED. R. CIV. P. 12(b)(4) and (5) because it alleges Plaintiff improperly served Larry Brehm. (Doc. No. 13). Bentley claims that Mr. Brehm is "not the agent of service" for Bentley and that, as a resu lt, by serving Mr. Brehm, Plaintiff has not properly served Bentley. See id. In response, Plaintiff submitted documentation from the Secretary of State of South Carolina n o tin g that Bentley's registered agent is Larry Brehm. (Doc. No. 18, Ex. D-E). Bentley has submitted n o evidence contradicting Plaintiff's assertion that Mr. Brehm is its registered agent for service of process. Accordingly, because it appears Mr. Brehm was the proper agent for service of process, Bentley has not sp ecifically indicated how Plaintiff's service was insufficient. See Photolab Corp. v. Simlex Specialty C o ., 806 F.2d 807, 810 (8th Cir. 1986) (stating that objections under FED. R. CIV. P. 12(b)(4) and (5) "m u st be specific and must point out in what manner the plaintiff has failed to satisfy the requirements o f the service provision utilized"). Because Bentley has not specifically indicated how Plaintiff's service was insufficient, Bentley's M o tio n to Dismiss and Motion to Quash should be DENIED. Pursuant to FED. R. CIV. P. 12(a), Bentley sh o u ld be given twenty-one (21) days to file its answer. The parties have fourteen (14) days from receipt of this Report and Recommendation in which to file written objections pursuant to 28 U.S.C. 636(b)(1). The failure to file timely objections may result in waiver of the right to appeal questions of fact. The parties are reminded that objections must be both timely and specific to trigger de novo review by the district court. See Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990). ENTERED this 16th day of February, 2010. /s/ Barry A. Bryant HON. BARRY A. BRYANT U. S. MAGISTRATE JUDGE

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