Tschiemer v. ServiceSource Network et al

Filing 27

MINUTE ORDER denying without prejudice 22 Defendant's Motion to Drop Nonexistent and Unserved Party, by Magistrate Judge Michael E. Hegarty on 5/25/2011. (mehcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-03168-WJM-MEH
CAROLA TSCHIEMER,
Plaintiff,
v.
SERVICESOURCE NETWORK and
SERVICESOURCE INC.,
Defendants.

MINUTE ORDER
Entered by Michael E. Hegarty, United States Magistrate Judge, on May 25, 2011.
Defendant’s Motion to Drop Nonexistent and Unserved Party [filed April 28, 2011; docket
#22] is denied without prejudice. The Court finds that some additional time and discovery is
justified to determine whether ServiceSource Network exists as separate legal entity and whether
Plaintiff exhausted her administrative remedies with respect to her ADA claims against
ServiceSource Network. See Beene v. Delaney, 70 F. App’x 486, 490 (10th Cir. 2003) (finding that
when evidentiary matters outside of the plaintiff’s complaint concerning exhaustion of remedies are
presented to the court, a motion to dismiss should be treated as a motion for summary judgment).
As such, the Court finds good cause to extend the deadline for service set forth in Fed. R. Civ. P.
4(m).
In this case, the discovery deadline is December 9, 2011. Discovery has been proceeding
since approximately April 15, 2011. Plaintiff’s counsel was aware of this issue in early March 20111
and stated her intention possibly to drop ServiceSource Network as a party in this case on or about
April 15, 2011. See Scheduling Order, ¶ 8.d., docket #21 at 7. Therefore, the Court will allow the
Plaintiff a total of two months, or until June 15, 2011,2 to discover the information necessary to
determine the corporate and/or legal status of ServiceSource Network and effect service upon that
defendant.3 If the Plaintiff fails to effect proper service on or before June 15, 2011, the Court will
entertain a renewed motion to dismiss ServiceSource Network by Defendant ServiceSource, Inc.,
1

See this Court’s May 25, 2011 order in Boles v. ServiceSource Network, et al., Case No. 10cv-02498-MSK-MEH.
2

This deadline provides the Plaintiff an extension of approximately 45 days past the deadline
set forth by Fed. R. Civ. P. 4(m), which is reasonable under the circumstances.
3

The Court notes that, other than attempting to mail a waiver of service to ServiceSource
Network in January 2011, Plaintiff describes no other efforts or attempts to serve this entity.

if necessary.

2