Tucker v. AllianceOne Inc. et al

Filing 16

ORDER denying 12 Motion to Dismiss Party; denying 14 Motion to Dismiss Party; giving Plaintiff until 8/13/2010 to inform Court as to status of service. Ordered by Judge Hugh Lawson on 7/21/2010. (nbp)

Tucker v. AllianceOne Inc. et al

Doc. 16

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF GEORGIA V AL D O S TA DIVISION D AV ID B. TUCKER, P l a i n ti ff, C A S E NO. 7:08-CV-106 (HL) v. AL L IAN C E O N E , INC. and HSBC BANK U S A N.A., Defendants. ORDER O n August 4, 2008, Plaintiff filed his complaint against AllianceOne, Inc. and H S B C Bank USA, N.A. (Doc. 1). Plaintiff contends that the Defendants violated the F a i r Debt Collection Practices Act. O n December 11, 2009, nunc pro tunc August 4, 2008, the Honorable W . L o ui s Sands, United States District Judge, granted Plaintiff's motion to proceed in fo rm a pauperis (Doc. 3). As required by Federal Rule of Civil Procedure 4(c), the U ni te d States Marshals Service was directed to serve Defendants. Since December 1 1 , 2009, three separate service process receipts and returns have been issued by the Clerk of Court for the Marshals Service to serve HSBC with summons and the c o m p l a i nt. The first was issued on December 11, 2009 (Doc. 5). Each of the service re c e i p ts contains a different address for service to be made upon HSBC. To date, H S B C has not been served in this case. AllianceOne was served, and on July 6, 2010, Plaintiff and AllianceOne filed a Joint Motion to Dismiss AllianceOne Receivables Management, Inc. W i th Prejudice

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(Doc. 12), as those parties have settled the claims between them. The Court then d i re c te d the parties to file a joint motion under Rule 21, which governs dismissing a p a rty from a case, if they wished to drop AllianceOne from the case (Doc. 13). The p a rti e s filed the requested motion on July 13, 2010 (Doc. 14). T he Court next entered an order on July 14, 2010 stating that while Plaintiff a nd AllianceOne filed the Rule 21 motion, the Court could not drop AllianceOne as a party without HSBC's signature on the motion. The Court also expressed concern tha t HSBC would be potentially prejudiced by the dismissal of AllianceOne. The p a rti e s were directed to file another Rule 21 motion to drop AllianceOne signed by a l l parties, including HSBC, no later than July 22, 2010. As an initial matter, the Court vacates its July 14, 2010 order (Doc. 15). It is no t necessary for all parties to sign a Rule 21 motion. D ro p p i ng a party to a lawsuit pursuant to Federal Rule of Civil Procedure 21 i s left to the sound discretion of the Court. Lampliter Dinner Theater, Inc. v. Liberty M ut. Ins. Co., 792 F.2d 1036, 1045 (11th Cir. 1986). At this point in time, the Court d o e s not believe it appropriate to dismiss AllianceOne. Thus, the Motions to Dismiss (D o c s . 12 and 14) are denied. However, Plaintiff and AllianceOne may re-file the M o ti o n after HSBC has been served and a responsive pleading or motion has been fi l e d . The Court believes HSBC should have the opportunity to consider the motion to drop and respond if it chooses to do so. The Court notes that the most recent service process receipt for HSBC was i s s ue d on June 28, 2010. Plaintiff is directed to follow up with the Marshals Service
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with regard to this attempt at service, and is to inform the Court in writing no later tha n August 13, 2010 as to the status of service on HSBC. Failure to respond to this O rd e r as directed could result in the dismissal of Plaintiff's complaint.

S O ORDERED, this the 21 st day of July, 2010. s / Hugh Lawson HUGH LAWSON, SENIOR JUDGE m bh

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