Cox v. Slay et al
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that defendant Garretts motion to dismiss for insufficient service of Process under Rule 12(b)(5), Fed. R. Civ. P., is DENIED as moot. [Doc. 14] Signed by District Judge Charles A. Shaw on 5/20/13. (JWJ)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
FRANCIS G. SLAY, et al.,
No. 4:13-CV-427 CAS
MEMORANDUM AND ORDER
This matter is before the Court on defendant Bobby Garrett’s motion to dismiss plaintiff’s
petition for insufficient service of process pursuant to Rule 12(b)(5), Federal Rules of Civil
Procedure. Plaintiff Matthew Cox opposes the motion. No reply has been filed and the time to do
has passed. The motion will be denied as moot for the following reasons.
Defendant Garrett’s motion states that on March 22, 2013, he was served with summons and
a document titled “Amended Petition,” which is substantively different than the Petition plaintiff
filed in state court and that was removed to this Court, and that no Amended Complaint has been
filed in this case. Garrett moves to dismiss on the basis that service of process is insufficient as
plaintiff has failed to comply with Rule 4(c)(1), Fed. R. Civ. P., because the “Amended Petition”
does not represent “a copy of the complaint” as required by Rule 4(c)(1).
A Rule 12(b)(5) motion is the proper vehicle for challenging the mode of delivery or the lack
of delivery of the summons and complaint. 5A Charles Alan Wright and Arthur R. Miller, Federal
Practice and Procedure § 1353 (2d ed. 1990).
In response, plaintiff concedes that he did not serve a copy of the correct Petition upon
defendant Garrett, but by affidavit of counsel states that after the motion to dismiss was filed,
counsel for defendant Garrett agreed to waive personal service of the petition and to accept service
on Garrett’s behalf, and did so by electronic mail on May 2, 2013. Defendant Garrett has filed no
reply within the time allowed to do so, and therefore the Court assumes that Garrett does not dispute
plaintiff’s opposition and the affidavit of plaintiff’s counsel.
This is acceptable service under Rule 4(e)(2)(C), and therefore defendant Garrett’s motion
to dismiss for insufficient service of process should be denied as moot.
IT IS HEREBY ORDERED that defendant Garrett’s motion to dismiss for insufficient
service of Process under Rule 12(b)(5), Fed. R. Civ. P., is DENIED as moot. [Doc. 14]
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
day of May, 2013.
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