Shaw v. Andritz Inc. et al

Filing 50

REPORT AND RECOMMENDATIONS- recommending that the court dismiss Defendants, Bay Valley Pulp and Paper Co. ("Bay Valley") and Bird Escher Wyss, Inc. ("BirdEscher"). Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 1/7/2016. Signed by Judge Sherry R. Fallon on 12/21/2015. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RALPH ELLIOTT SHAW and JOAN
SANDERSON SHAW
Plaintiffs,

v:.
AND RITZ INC., et al.,
Defendants.

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C.A. No. 1: 15-cv-00725-SLR-SRF

REPORT AND RECOMMENDATION
At Wilmington this

Ji!

day of December, 2015, I recommend that the court dismiss

Defendants, Bay Valley Pulp and Paper Co. ("Bay Valley") and Bird Escher Wyss, Inc. ("Bird
Escher"), from the above-captioned case without prejudice for the following reasons:
1.

On February 26, 2015, Plaintiffs filed the present asbestos related personal injury

action against multiple defendants in the Superior Court of the State of Delaware. (D.I. 1, Ex. A)
Defendant CBS Corporation removed the action to this court on August 21, 2015. (D.I. 1)
2.

On September 30, 2015, Plaintiffs filed a status report advising the court that

Defendants Bay Valley and Bird Escher had not yet been served with process. (D.I. 20)
Plaintiffs represented to the court that they were no longer pursuing service as to Bay Valley, and ,
that they were unable to complete service for Bird Escher, as the registered agent was no longer
viable. (Id.)
3.

On December 1, 2015, the court entered an order to show cause, on or before

December 15, 2015, why this court should not recommend that Bay Valley and Bird Escher be
dismissed from the action. (D.I. 49)
4.

To date, Plaintiffs have not responded to the order to show cause.
1

5.

Pursuant to the Federal Rules of Civil Procedure in effect at the time of filing,

Plaintiffs had 120 days after filing the complaint to effectuate service on Bay Valley and Bird
Escher. Fed.R.Civ.P. 4(m) (2007) (amended 2015). 1 The court must dismiss a complaint without
prejudice ifthe requirements of Rule 4(m) are not satisfied, unless a plaintiff shows good cause
justifying an extension of time to complete service. Id. If a plaintiff does not demonstrate good
cause, the court has discretion to provide for an extension of time for service or to dismiss the
complaint. Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995).
6.

Plaintiffs have now failed to effectuate service against Bay Valley and Bird

Escher almost ten months after the date the complaint was filed. Moreover, Plaintiffs have failed
to respond to the order to show cause. (D.I. 49) As such, Plaintiffs provide no justification for
the court to extend time to complete service. Therefore, I recommend that the court dismiss the
complaint against Defendants, Bay Valley Pulp and Paper Co. and Bird Escher Wyss, Inc.,
without prejudice for failure to effectuate service within the time allotted.
7.

This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B),

Fed. R. Civ. P. 72(b)(l), and D. Del. LR 72.1. The parties may file and serve specific written
objections within fourteen (14) days after being served with a copy of this Report and
Recommendation. Fed. R. Civ. P. 72(b)(2). The written objections and responses are each
limited to five (5) pages.
8.

The parties are directed to the court's Standing Order In Pro Se Matters For

Objections Filed Under Fed. R. Civ. P. 72, dated November 16, 2009, a copy of which is
available on the court's website, www.ded.uscourts.gov.

1

The rules have since been amended to reflect a 90 day time limit. Fed.R.Civ.P. 4(m).
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Dated:

Decembe~{

, 2015

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