Bradley v. Moorman Farms, Inc. et al

Filing 39

ORDER DISMISSING DEFENDANT METCALF: For the reasons stated in the attached Order, the Court DISMISSES Defendant Robert Metcalf. Plaintiff's claims remain against Defendant Moorman Farms, Inc. Signed by Judge Michael J. Reagan on 11/23/11. (soh )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PATTON BRADLEY,
Plaintiff,
vs.
MOORMAN FARMS, INC. ,
and ROBERT METCALF,
Defendants.

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Case No. 11-cv-0247-MJR-PMF

ORDER OF DISMISSAL
REAGAN, District Judge:
Represented by counsel, Patton Bradley filed suit in this Court almost
eight months ago, naming two Defendants (Robert Metcalf and Moorman Farms, Inc.)
and seeking damages for injuries sustained in a March 2010 vehicular collision in
Marion, Illinois.

Subject matter jurisdiction was invoked under the federal diversity

statute, 28 U.S.C. 1332, but incompletely pled. The Court directed Plaintiff’s counsel to
file an amended complaint properly alleging all components of diversity jurisdiction,
which was done on April 8, 2011. Defendant Moorman Farms answered on April 26,
2011, trial was set, and a discovery schedule entered.

Defendant Metcalf, however,

was not served. Months passed.
On September 16, 2011, the Court issued a Notice of Impending
Dismissal, advising Plaintiff’s counsel that Defendant Metcalf would be dismissed (for
want of prosecution by Plaintiff) unless action was taken within 21 days -- either
accomplishing service on Metcalf or, if Metcalf had been served by failed to respond to
the complaint, filing a motion for clerk’s entry of default against him (see Doc. 35). On

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October 4, 2011, Plaintiff’s counsel sought a 60-day extension of time in which to serve
Defendant Metcalf.
The undersigned Judge partially granted that motion (see Doc. 38), giving
Plaintiff’s counsel an additional 45 days to meet the deadline set in the Notice of
Impending Dismissal. The Order plainly cautioned: “Robert Metcalf will be dismissed
as a named Defendant unless – on or before November 21, 2011 – Plaintiff
accomplishes proper service on Metcalf (and files a return of service or other document
from which the Court can verify that Metcalf has been served).”
The November 21st deadline expired without any filing by Plaintiff’s
counsel. Accordingly, the Court hereby DISMISSES Robert Metcalf as a Defendant
herein, pursuant to Federal Rule of Civil Procedure 41(b). Dismissal shall be without
prejudice.
IT IS SO ORDERED.
DATED November 23, 2011.

s/ Michael J. Reagan
Michael J. Reagan
United States District Judge

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