Klein & Heuchan, Inc. v. CoStar Realty Information, Inc. et al

Filing 35

RESPONSE in opposition re 29 MOTION to quash service of summons, 33 MOTION to dismiss complaint for insurriency of service of process MOTION to quash service filed by CoStar Realty Information, Inc., CoStar Group, Inc.. (Sarich, Sanya)

Klein & Heuchan, Inc. v. CoStar Realty Information, Inc. et al

Doc. 35

IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION KLEIN & HEUCHAN, INC., Plaintiff, v. COSTAR REALTY INFORMATION, INC., and COSTAR GROUP, INC., Defendants. Civil Action No. 8:08-cv-01227-JSM-MSS

COSTAR'S RESPONSE IN OPPOSITION TO COUNTERCLAIM DEFENDANT SCOTT BELL'S MOTION TO QUASH OR DISMISS FOR INSUFFICIENCY OF SERVICE OF PROCESS Defendants/Counterclaim Plaintiffs CoStar Realty Information, Inc., and CoStar Group, Inc. (collectively, "CoStar"), by and through their undersigned counsel, hereby file this response in opposition to Counterclaim Defendant Scott Bell's "Motion to Quash for Insufficiency of Service of Process or Alternatively Dismiss Complaint for Insufficiency of Service of Process." D.E. 33.1 Bell's motion should be dismissed in its entirety. Bell appears to argue that the counterclaim should be dismissed as to him because he was not served within the 120 day period prescribed by Fed. R. Civ. P. 4(m).2 See D.E. 33 at ¶ 1,

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Docket entries will be referred to herein as "D.E. __."

Fed. R. Civ. P. 4(m) provides, in relevant part: "If a defendant is not served within 120 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time. . . ."

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Dockets.Justia.com

p. 2. As an initial matter, Scott Bell's motion was filed on January 7, 2008, just 47 days after the complaint against him was filed. See D.E. 23 (CoStar's Answer and Counterclaim, filed November 21, 2008). Bell's motion is therefore premature and should be denied on that ground alone. Moreover, Scott Bell has, as of the time of the filing of this response, been served with the summons and complaint in accordance with Rule 4 of the Federal Rules of Civil Procedure. D.E. 34. Specifically, Scott Bell was served on January 13, 2009, 53 days after the complaint against him was filed. Id. Bell's motion should therefore also be denied, in its entirety, as moot.3 Dated: January 23, 2009 Respectfully submitted, s/Sanya Sarich William J. Sauers (admitted pro hac vice) Sanya Sarich (admitted pro hac vice) Crowell & Moring LLP 1001 Pennsylvania Ave. Washington, DC 20004 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail]

To the extent it remains pending before this court, Bell's "Motion to Quash Service of Summons" (D.E. 29) should likewise be denied as moot.

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- and William C. Guerrant, Jr. Florida Bar No. 516058 [e-mail] Trial Counsel William F. Sansone Florida Bar No. 781231 [e-mail] HILL, WARD & HENDERSON, P.A. Suite 3700 ­ Bank of America Building 101 East Kennedy Boulevard Post Office Box 2231 Tampa, Florida 33601 Telephone: [phone] Facsimile: [phone] Counsel for Defendants-Counterclaim Plaintiffs CoStar Realty Information, Inc. and CoStar Group, Inc.

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on January 23, 2009, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which sent a notice of electronic filing to the following: J. Paul Raymond Jeff Gibson MacFarlane Ferguson & McMullen P. O. Box 1669 Clearwater, FL 33757 [e-mail] [e-mail] Counsel for Plaintiff-Counterclaim Defendant K&H I FURTHER CERTIFY that on January 23, 2009, a true copy of the foregoing was sent to the following by United States First Class mail: Scott Bell 2725 Big Pine Drive Holiday, FL 34691 Defendant (pro se) s/Sanya Sarich Sanya Sarich (admitted pro hac vice) Crowell & Moring LLP 1001 Pennsylvania Ave. Washington, DC 20004 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Counsel for Defendants-Counterclaim Plaintiffs CoStar Realty Information, Inc. and CoStar Group, Inc.

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