BELTRA et al v. GRAND STONE & TILE, INC. et al

Filing 14

ENTRY DISMISSING CASE WITHOUT PREJUDICE: HEREBY DISMISSES THIS CASE WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure4(m) ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 5/2/2013. Copy sent to JAS Granite & Tile, LLC, Javier Y. Meleiro, and Grand Stone & Tile, Inc. via US Mail.(DW) Modified on 5/3/2013 (DW).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ENRIQUE BELTRA, et al.,
Plaintiffs,
vs.
GRAND STONE & TILE, INC., et al.,
Defendants.

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) CAUSE NO. 1:12-cv-1079-WTL-TAB
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ENTRY DISMISSING CASE WITHOUT PREJUDICE
On March 11, 2013, the Court entered an order to show cause pursuant to Local Rule 41-1.
That order directed the Plaintiffs in this cause to show cause why this case should not be dismissed
for failure to prosecute in light of the fact that the Plaintiffs had made no filing since their amended
complaint was filed on August 8, 2012, and there was no indication that the Plaintiffs had served the
Defendants with the amended complaint. The order also pointed out deficiencies in the Plaintiffs’
jurisdictional allegations and directed the Plaintiffs to provide the necessary jurisdictional
information in their response to the order to show cause.
Plaintiffs’ counsel, Brian Salwowski, filed a timely response to the order to show cause in
which he stated that he had not attempted to effect service because he was “under the mistaken
belief that the summons would be served on the defendant [sic.] by the clerk of the federal court”
and that he “did not become aware that a problem existed with service in this lawsuit” until he
received the order to show cause. Dkt. No. 7. Therefore, he argues, there was good cause for his
failure to effect service within the relevant time period and the Court must give him additional time
pursuant to Federal Rule of Civil Procedure 4(m).
There is an obvious problem with counsel’s argument. Federal Rule of Civil Procedure

4(c)(1) provides that “[t]he plaintiff is responsible for having the summons and complaint served
within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who
makes service.” The law is clear: “Failure to read a rule is the antithesis of good cause.” Tuke v.
United States, 76 F.3d 155 (7th Cir. 1996). And there is another problem: It appears that Mr.
Salwowski’s representation that he was unaware that he was responsible for service until he
received this Court’s order to show cause is demonstrably untrue. In fact, Mr. Salwowski became
aware of that fact no later than February 6, 2013, which is the date that he filed an almost identical
response to a show cause order in another case in this district, Ross v. Nice-Pak Products, Inc.,
Cause No. 1:12-cv-1163-RLY-DML. Inasmuch as Mr. Salwowski represents plaintiffs in only two
cases pending in this district, the fact that he failed to take action in this case given his experience in
his other case seems to defy explanation. Mr. Salwowski clearly has not demonstrated good cause
for his failure to effect service in this case prior to the Court’s order to show cause.
The problems do not end there. The Court’s order to show cause also pointed out three
specific ways in which the amended complaint in this case failed to provide adequate jurisdictional
information and instructed the Plaintiffs to include the necessary information in their response to the
order. The Plaintiffs instead filed a second amended complaint, purportedly to correct these failures.
The second amended complaint was filed without leave of court in violation of Federal Rule of
Civil Procedure 15(a), which provides that a pleading may be amended only once without either
leave of court or the written consent of the opposing parties.
Even more troubling than the failure to seek leave of court is the fact that the second
amended complaint still does not contain all of the information necessary for the Court to determine
whether it has jurisdiction over this case, despite the explicit directions given in the order to show
cause. Specifically, the Court pointed out that the amended complaint alleged that the Plaintiffs are

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“residents of the state of Indiana” and Defendant Javier Meleiro is a “resident of New Jersey,” but
“residence and citizenship are not synonyms and it is the latter that matters for purposes of

diversity jurisdiction.” Meyerson v. Harrah’s East Chicago Casino, 299 F.3d 616, 617 (7th Cir.
2002). In the second amended complaint, the Plaintiffs still allege only the states in which the
Plaintiffs reside, not the states of which they are citizens. In addition, the Court pointed out that
the Plaintiffs failed to identify the members of Defendant JAS Granite and Tile, LLC, and the
citizenship of each member. See Thomas v. Guardsmark, LLC, 487 F.3d 531, 534 (7th Cir. 2007)

2007) (for purposes of diversity jurisdiction, citizenship of a limited liability company is
determined by citizenship of each of its members). In the second amended complaint, the
Plaintiffs identify the two members of JAS Granite and Tile, LLC, but fail to identify the state(s) of
their citizenship; they identify the state of residence of one member and give no information other
than the name of the second member.
In its order to show cause, the Court admonished the Plaintiffs that:
If the Plaintiffs wish to proceed with this case, they must provide all of the necessary
jurisdictional information in their response to this Order. The failure to file a timely
and complete response to this Order will result in the Plaintiffs’ claims being dismissed
with prejudice.
Dkt. No. 6. In light of the fact that Plaintiffs’ counsel filed a timely response to the order to show
cause and made an attempt, albeit a woefully inadequate one, to provide the requisite jurisdictional
information, the Court will not dismiss the Plaintiffs’ claims with prejudice for failure to prosecute.
However, in light of the myriad of issues set forth above that Plaintiffs’ counsel has failed to remedy
despite being given the opportunity to do so, and in light of the fact that counsel has not shown good
cause for his failure to effect service in a timely manner despite having the same failure pointed out
to him in another case, the Court declines to extend the period of service and instead HEREBY

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DISMISSES THIS CASE WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure
4(m).
SO ORDERED: 05/02/2013
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copy by United States Mail to:
JAS Granite & Tile, LLC
145 Chapel St.
Newark, NJ 07105
Javier Y. Meleiro
99 Chambers St.
Newark, NJ 07105
Grand Stone & Tile, Inc.
16 Herbert St. Hanger 3
Newark, NJ 07105
Copy to counsel of record via electronic notification

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