George v. Leighton et al

Filing 56

MINUTE ORDER denying as moot 22 Motion to Dismiss and/or Motion to Quash Service, by Magistrate Judge Michael J. Watanabe on 10/26/2015.(slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01315-RBJ-MJW
DAVID GEORGE,
Plaintiff,
v.
BONNIE LEIGHTON,
BARBARA SMITH,
COLORADO REAL ESTATE NETWORK, INC., and
JOYCE ANN WAYMAN,
Defendants.
MINUTE ORDER
Entered by Magistrate Judge Michael J. Watanabe
On August 21, 2015, Defendants Bonnie Leighton and Barbara Smith moved to
dismiss the claims against them or to quash service, based on improper service.
(Docket No. 22.) On October 8, 2015, Defendants Leighton and Smith filed an Answer
to the Complaint. (Docket No. 51.)
In the reply in support of their motion to dismiss or quash, Defendants state:
“Although Defendant Leighton and Defendant Smith were subsequently
served with a full copy of the complaint and have filed an Answer (Docket
No. 51), the first purported service on August 5 and August 18, 2015
should still be quashed as it was improper.”
(Docket No. 55, p.4.)
The purpose of quashing a subpoena is to give a plaintiff another chance
to effect service before dismissing the case. See Pell v. Azar Nut Co., 711 F.2d
949, 950 n.2 (10th Cir. 1983) (“We note that when a court finds that service is
insufficient but curable, it generally should quash the service and give the plaintiff
an opportunity to re-serve the defendant.” (citing 5 C. Wright & A. Miller, Federal
Practice and Procedure § 1354, at 586-87 (1969))). Defendants Leighton and
Smith wholly fail to explain what they intend to accomplish through quashing the
subpoena at this point.

Accordingly, Defendants Barbara Smith’s and Bonnie Leighton’s Motion to
Dismiss and/or Motion to Quash Service (Docket No. 22) is DENIED AS MOOT.
Date: October 26, 2015