Columbia National Insurance Company v. Liberty Mutual Fire Insurance Company et al

Filing 11

ORDERED that Liberty and Columbia upon service of this Order, conduct the required Rule 26(f) conference and submit a proposed scheduling order to the court. The Court also orders Columbia to within 10 days of the service of this order, to show cause why this case should not be dismissed without prejudice. ( Compliance due by 5/4/2016.) Signed by Judge William T. Moore, Jr on 4/20/16. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
COLUMBIA NATIONAL
INSURANCE CO.,
Plaintiff,
v.
Case No. CV416-012
LIBERTY MUTUAL FIRE
INSURANCE CO. and
ENVIRONMENTAL RECOVERY
CORP.,
Defendants.

ORDER
In this declaratory judgment action, plaintiff Columbia National
Insurance Co. served defendant Liberty Mutual Fire Insurance Co.
shortly after filing its Complaint. Liberty answered on February 3, 2016.
Doc. 6. That answer triggered a 60 day deadline (April 4, 2016) for the
Court to issue a scheduling order, 1 and a 39 day deadline (March 14,

1

See Fed. R. Civ. P. 16(b)(2) (a court must issue a scheduling order “within the
earlier of 90 days after any defendant has been served with the complaint or 60 days
after any defendant has appeared”). Because Liberty answered so quickly, the 60 day
appearance trigger applied.

2016) for Liberty and Columbia to hold a Fed. R. Civ. P. 26(f)
conference. 2
Both deadlines have come and gone with nary a word, much less a
Rule 26(f) conference, from Liberty or Columbia. Not only have the
parties violated the Federal Rules, they have caused the Court to do so as
well. Hence, the Court ORDERS Liberty and Columbia to, within 14
days of the date this Order is served, conduct the required Rule 26(f)
conference and submit a proposed scheduling order to the Court.
Another matter requires the Court’s attention. Under Fed. R. Civ.
P. 4(m), “[i]f a defendant is not served within 90 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 by made within a specified time. But if the plaintiff
2

Under Rule 26(f), “the parties must confer as soon as practicable -- and in any
event at least 21 days before a . . . scheduling order is due under Rule 16(b).” With
the Court’s scheduling order due 60 days after Liberty’s answer, the 26(f) conference
should have occurred 21 days before that, or 39 days after the answer.
The Court’s General Order requires parties to confer “by the earlier of 21 days
after the filing of the last answer of defendants . . . or 45 days after the first
appearance by answer or motion . . . of a defendant named in the original complaint.”
Doc. 5 at 1 (emphasis omitted). Only one of two defendants has answered here, so, in
this case, the Order mandates a conference 45 days after Liberty’s answer. That’s
obviously outside the 39 day limit mandated by Rules 26(f) and 16(b), so the Rules’
deadline controls. Regardless of what deadline applies, the parties failed to timely
confer. Note: The Court is in the process of amending its Local Rules to conform LR
26.1(a) to the new requirements of Federal Rule 16(b)(2).

shows good cause for the failure, the court must extend the time for
service for an appropriate period.” (emphasis added). Defendant
Environmental Recovery Corp. remains unserved some 100 days after
Columbia filed its Complaint. Doc. 1. The Court therefore ORDERS
Columbia to, within 10 days of the date this Order is served, show cause
why this case should not be dismissed without prejudice against
Environmental Recovery.

SO ORDERED , this 20th day of April, 2016.

-

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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