Troester-Miller v. Experian Information Solutions, Inc. et al
Filing
38
ORDER (1) SUBMITTING 35 DEFENDANT TD BANK USA, N.A.S MOTION TO DISMISS FOR INSUFFICIENT SERVICE OF PROCESS WITHOUT ORAL ARGUMENT AND VACATING HEARING; (2) GRANTING 35 MOTION TO DISMISS; AND (3) DIRECTING CLERK TO CLOSE FILE. Order by Hon. Beth Labson Freeman granting 35 Motion to Dismiss.(blflc1S, COURT STAFF) (Filed on 11/4/2016)
1
2
3
UNITED STATES DISTRICT COURT
4
NORTHERN DISTRICT OF CALIFORNIA
5
SAN JOSE DIVISION
6
7
COLBI TROESTER-MILLER,
Case No. 15-cv-04621-BLF
Plaintiff,
8
v.
9
10
TD BANK USA, NATIONAL
ASSOCIATION,
Defendant.
United States District Court
Northern District of California
11
12
ORDER (1) SUBMITTING DEFENDANT
TD BANK USA, N.A.’S MOTION TO
DISMISS FOR INSUFFICIENT
SERVICE OF PROCESS WITHOUT
ORAL ARGUMENT AND VACATING
HEARING; (2) GRANTING MOTION
TO DISMISS; AND (3) DIRECTING
CLERK TO CLOSE FILE
[Re: ECF 35]
13
14
15
On July 28, 2016, Defendant TD Bank USA, N.A. filed a Motion to Dismiss for
16
Insufficient Service of Process pursuant to Federal Rule of Civil Procedure 12(b)(5). See Motion
17
to Dismiss, ECF 35. The motion is supported by declarations and correspondence establishing
18
that Plaintiff failed to respond to an offer extended by TD Bank USA N.A.’s counsel to return a
19
waiver of service under Federal Rule of Civil Procedure 4(d), and failed to effect service of
20
process on TD Bank USA, N.A. within the time provided under Federal Rule of Civil Procedure
21
4(m).
22
Plaintiff’s response to the motion to dismiss was due on August 11, 2016. See Civ. L.R. 7-
23
3(a) (opposition due within fourteen days). Plaintiff did not file a response. On August 12, 2016,
24
TD Bank USA, N.A. filed a Notice of No Opposition to Motion for Dismissal for Insufficient
25
Service of Process. See Notice of No Opposition, ECF 36. Plaintiff did not file a response to the
26
Notice of No Opposition. The Court hereby SUBMITS the Motion to Dismiss for disposition
27
without oral argument and VACATES the hearing date noticed for December 1, 2016. See Civ.
28
L.R. 7-1(b).
1
At the time Plaintiff’s complaint was filed on October 6, 2015, Federal Rule of Civil
2
Procedure 4(m) provided that “[i]f a defendant is not served within 120 days after the complaint is
3
filed, the court – on motion or on its own after notice to the plaintiff – must dismiss the action
4
without prejudice against that defendant or order that service be made within a specified time.”
5
Fed. R. Civ. P. 4(m); see also Malibu Media, LLC v. Doe, No. C 15-04443 WHA, 2016 WL
6
3383759, at *1 (N.D. Cal. June 20, 2016) (discussing prior version of Rule 4(m)).1 TD Bank
7
USA, N.A. has shown by its motion that Plaintiff did not serve it within 120 days after filing the
8
complaint and still has not served it with the summons and complaint. Plaintiff has not rebutted
9
that showing or responded in any way to TD Bank USA, N.A.’s Motion to Dismiss or Notice of
No Opposition. Under these circumstances, the Court concludes that dismissal, rather than an
11
United States District Court
Northern District of California
10
extension of time to effect service, is appropriate. The Motion to Dismiss is GRANTED and the
12
action is DISMISSED WITHOUT PREJUDICE as to TD Bank USA, N.A.
All other defendants previously having been dismissed from the case, the Clerk is
13
14
HEREBY DIRECTED to close the file.
15
IT IS SO ORDERED.
16
17
Dated: November 4, 2016
______________________________________
BETH LABSON FREEMAN
United States District Judge
18
19
20
21
22
23
24
25
26
27
28
1
Rule 4(m) was amended, effective December 1, 2015, to shorten the time for service from 120
days to 90 days. This Court applies the 120-day rule that was in effect when Plaintiff filed the
complaint. See Malibu Media, 2016 WL 3383759, at *1 n.*.
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?