Scott et al v. Restaurant Technologies, Inc.

Filing 56

Judge Indira Talwani: ORDER entered. re 7 Third Party Complaint, filed by Restaurant Technologies, Inc.: Third-Party Defendant European Quarry Imports, LLC terminated. SEE attached Order. (MacDonald, Gail)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOSEPH SCOTT, individually and as
Trustee of RYDAN PARK MASTER
TRUST,

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Plaintiffs,
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v.
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RESTAURANT TECHNOLOGIES, INC., *
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Defendant.
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Civil Action No. 14-cv-12614-IT

ORDER
April 30, 2015
TALWANI, D.J.
Restaurant Technologies, Inc. (“Restaurant Tech”) filed a third-party complaint in this
case on July 2, 2014. See Third-Party Compl. [#7]. The certificate of service filed by Restaurant
Tech states that Third-Party Defendant European Quarry Imports, LLC was served on August
21, 2014. See Summons Returned Executed [#21]. However, Restaurant Tech has now brought
to the court’s attention that service was mistakenly executed on Frageo Enterprises, LLC (which
does business under the trade name European Quarry Imports) rather than on European Quarry
Imports, LLC. See Aff. Christopher R. Grote Supp. Def. & Third-Party Plaintiff Restaurant
Technologies, Inc.’s Mot. Leave File Second Am. Third-Party Compl., Ex. 1 [#40-1]. As
acknowledged by counsel for Restaurant Tech during the court’s April 27, 2015 motion hearing,
European Quarry Imports, LLC has not been served.
Pursuant to the Federal Rules of Civil Procedure and this court’s Local Rules, service
must be completed within 120 after the filing of a complaint. See Fed. R. Civ. P. 4(m) (“If a

defendant is not served within 120 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 be made within a specified time.”); Local Rule 4.1 (“If on the
14th day following the expiration of the 120 day period good cause has not been shown [for
failure to timely serve] . . . , the clerk shall forthwith automatically enter an order of dismissal for
failure to effect service of process . . . .”).
More than 120 days have passed since July 2, 2014, and Restaurant Tech has not shown
good cause for its failure to timely serve European Quarry Imports, LLC. On April 27, 2015, the
court provided Restaurant Tech with notice that European Quarry Imports, LLC would be
dismissed, and counsel did not object to this dismissal. Accordingly, pursuant to Federal Rule of
Civil Procedure 4(m) and Local Rule 4.1(b), it is hereby ordered that the Third-Party Defendant
European Quarry Imports, LLC is dismissed from this case without prejudice.
IT IS SO ORDERED.
Date: April 30, 2015

/s/ Indira Talwani
United States District Judge

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