Sylvester et al v. Menu Foods, Inc. et al

Filing 11

Sylvester et al v. Menu Foods, Inc. et al

Doc. 11 Att. 1

Case 1:07-cv-00409-ACK-KSC

Document 11-2

Filed 08/03/2007

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII VALERIE SYLVESTER; DAVID PANG; ANDREW GARCIA; RUTH CAMARGO; CHRIS HUBBARD; STACEY COLLINS; RANDALL BANDMANN; KELLY ENGLE; PAM GOULD; and ERIK CORAL-SANDS, ) ) ) ) ) ) ) ) Plaintiffs, ) ) vs. ) ) MENU FOODS, INC., a New Jersey ) corporation; MENU FOODS ) HOLDINGS, INC., a Delaware ) corporation; MENU FOODS ) INCOME FUND, an unincorporated ) Canadian business; DOE ENTITIES ) and INDIVIDUALS 1-100, ) ) Defendants. ) ) CIVIL NO. CV 07-00409 ACK-KSC (Non-Vehicle Tort) MENU FOODS INCOME FUND'S MOTION TO QUASH OR, ALTERNATIVELY, TO DISMISS

MENU FOODS INCOME FUND'S MOTION TO QUASH OR, ALTERNATIVELY, TO DISMISS Defendant Menu Foods Income Fund (the "Income Fund") moves to quash Plaintiffs' purported service of process upon it or, alternatively, to dismiss pursuant to Fed. R. Civ. P. 12(b)(4), 12(b)(5), and 12(b)(2) for insufficiency of process, insufficiency of service of process, and lack of jurisdiction. Although service

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Dockets.Justia.com

Case 1:07-cv-00409-ACK-KSC

Document 11-2

Filed 08/03/2007

Page 2 of 2

undoubtedly was improper, counsel for the Income Fund nonetheless repeatedly has offered to accept service of Plaintiffs' Complaint in exchange for a brief extension to respond that is consistent with the extension this Court previously granted co-Defendants Menu Foods, Inc., and Menu Foods Holdings, Inc. Plaintiffs steadfastly refused to extend this reasonable courtesy. These obstructive actions have forced the Income Fund to file an ex parte application for an extension. That application remains pending, but if the Court grants it, the Income Fund hopes that it will be able to resolve service issues and withdraw this motion, and then respond to the Complaint at the same time as its co-defendants. However, to reserve its rights as a foreign unincorporated business entity that has not been sued and served properly, the Income Fund must file this motion to quash or dismiss. This Motion is made pursuant to Fed. R. Civ. P. 4(f), 4(h), 7, 12(b)(4), 12(b)(5), and 12(b)(2), Rules 7.1 thru 7.6 of the Local Rules of the United States District Court for the District of Hawaii, the memorandum, and declarations attached hereto, and the records and files herein. DATED: Honolulu, Hawaii, August 3, 2007 .

_______/s/ Chad P. Love____ CHAD P. LOVE BARBARA J. KIRSCHENBAUM Attorneys for Defendant Menu Foods Holdings, Inc., and Menu Foods, Inc., and Menu Foods Income Fund
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