First Trinity Capital Corporation v. Underwriters of Lloyd's of London et al
Filing
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MEMORANDUM OPINION AND ORDER - Plaintiff's claims agains defendant are dismissed without prejudice. A separate judgment will be entered. Signed by District Judge Keith Starrett on 10/17/2013 (scp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
FIRST TRINITY CAPITAL CORPORATION
V.
PLAINTIFF
CIVIL ACTION NO. 2:12cv237-KS-MTP
UNDERWRITERS AT LLOYD’S OF LONDON
DEFENDANT
MEMORANDUM OPINION AND ORDER
This matter is before the Court, sua sponte, for consideration of dismissal. For
the reasons stated below, Plaintiff First Trinity Capital Corporation’s claims against
Defendant Underwriters at Lloyd’s of London will be dismissed without prejudice
pursuant to Federal Rule of Civil Procedure 4(m).
I. Procedural History
On August 6, 2012, Plaintiff First Trinity Capital Corporation (“First Trinity”) filed
suit against Defendants Underwriters at Lloyd’s of London (“Underwriters”) and Pelican
General Agency (“Pelican”) in the Circuit Court of Forrest County, Mississippi. (See
Compl. [1-1 at ECF p. 2].) The Complaint alleges that First Trinity is engaged in the
business of financing insurance premiums, and asserts that Underwriters and Pelican
are liable for their failure to remit unearned insurance premiums pursuant to various
legal theories. On December 18, 2012, Pelican removed the proceeding to this Court
on the basis of diversity of citizenship jurisdiction under Title 28 U.S.C. § 1332. On July
25, 2013, an Agreed Judgment of Dismissal [4] was entered, dismissing First Trinity’s
claims against Pelican with prejudice. On August 6, 2013, noting that process had not
been served on Underwriters, the Court entered its Show Cause Order [5]. The Court
gave notice to First Trinity “pursuant to Rule 4(m) that the Complaint will be dismissed
as to the second defendant [Underwriters] unless within ten (10) days of the date of this
Order, being August 16, 2013, good cause is shown why process has not been
completed.” (Show Cause Order [5].) First Trinity has failed to respond to the Show
Cause Order [5] as of the date of this Order.
II. Discussion
Rule 4(m) provides in pertinent part:
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. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate
period.
Fed. R. Civ. P. 4(m). No cause, good or otherwise, has been presented to the Court for
First Trinity’s failure to serve Underwriters with process within 120 days of the filing of
the Complaint. Therefore, the Court is not required to extend the time for service under
Rule 4(m). Further, the Court finds that dismissal without prejudice of First Trinity’s
claims against Underwriters, as opposed to an order that service be made within a
specified time, is appropriate given First Trinity’s failure to respond to the Show Cause
Order [5]. Cf. Walker v. Foamex Corp., No. 1:11cv18, 2011 WL 3740718, at *1-2 (N.D.
Miss. Aug. 23, 2011) (exercising discretion to dismiss claims without prejudice where
the plaintiff did not respond to a dismissal motion or show good cause for failing to
timely serve process); Ross v. Leake County, Miss., No. 3:10cv403, 2011 WL 2604713,
at *1 (S.D. Miss. June 30, 2011) (finding that the action should be dismissed without
prejudice given the plaintiff’s failure to request an extension of time to serve process or
to otherwise respond to the Court’s notice that the case may be dismissed pursuant to
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Rule 4(m)). First Trinity’s apparent lack of interest in pursuing its claims against the
remaining Defendant, Underwriters, militates against any further proceedings in this
action.
III. Conclusion
IT IS THEREFORE ORDERED AND ADJUDGED that the Plaintiff First Trinity
Capital Corporation’s claims against Defendant Underwriters at Lloyd’s of London are
dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil
Procedure. A separate judgment will be entered pursuant to Federal Rule of Civil
Procedure 58.
SO ORDERED AND ADJUDGED this the 17th day of October, 2013.
s/ Keith Starrett
UNITED STATES DISTRICT JUDGE
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