John Beal, Inc. v. Roofpros, Inc. et al

Filing 46

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that no later than October 26, 2017, plaintiff shall inform the Court as to the status of service upon foreign defendant All Response Media, Ltd. In the event service of process has not yet been perfected, plaintiff shall immediately take the necessary steps to cause process to issue in accordance with the Federal Rules of Civil Procedure and shall certify to this Court that it has done so. IT IS FURTHER ORDERED that no later than October 26, 2017, plaintiff shall file an appropriate motion for default and default judgment as to defendant Roofpros, Inc., supported by all necessary affidavits and documentation, along with a proposed order granting the motion for default by th e Clerk of Court and a separate proposed default judgment for my consideration. In the absence of filing a motion for default and for default judgment, plaintiff shall show cause why its claims against defendant Roofpros, Inc., should not be dismissed for failure to prosecute. Signed by District Judge Catherine D. Perry on 10/16/2017. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOHN BEAL, INC.,
Plaintiff,
v.
ROOFPROS, INC., et al.,
Defendants.

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No. 4:16 CV 1151 CDP

MEMORANDUM AND ORDER
Plaintiff John Beal, Inc., filed this trademark infringement action in State
court in November 2015. When new defendants were named in May 2016,
including defendant Roofpros, Inc., the matter was removed to this Court.
Roofpros was thereafter served with process in October 2016 but has yet to enter an
appearance. The other defendant pending at the time of removal, Web.com Group,
Inc., has since been dismissed.
With leave of Court, plaintiff filed an amended complaint on July 19, 2017,
again naming Roofpros as a defendant, as well as All Response Media, Ltd., a
foreign company located in the United Kingdom. In granting plaintiff leave to file
this amended complaint, I instructed that service be effected on this foreign
defendant in accordance with Fed. R. Civ. P. 4(l) and that plaintiff promptly provide
proof of such service. Nothing has happened in this case since.

The 90-day limit for service of process under Fed. R. Civ. P. 4(m) does not
apply to service in a foreign country. However, a plaintiff is not granted unlimited
time to serve a foreign defendant and must act diligently in effectuating service
within a reasonable time. Nithyananda Dhanapeetam of St. Louis v. Rao, No.
4:13-CV-1683 CAS, 2014 WL 1208014, at *2 (E.D. Mo. Mar. 24, 2014). Although
the amended complaint was filed nearly three months ago, nothing in the record
shows plaintiff to have taken any action to effect service upon All Response Media.
I will therefore order plaintiff to inform me as to the status of service upon this
foreign defendant.
With respect to defendant Roofpros, this action has been pending against it
since May 2016 and service of process was effected upon it in October 2016.
Further, the amended complaint’s certificate of service shows plaintiff to have
served Roofpros with the amended complaint in July 2017. Roofpros, however, has
yet to enter an appearance in this action, and plaintiff has taken no steps seeking
disposition of its claims against Roofpros, whether by default or otherwise. I will
therefore order plaintiff to file an appropriate motion for entry of default and default
judgment, or to show cause why its claims against defendant Roofpros should not be
dismissed for failure to prosecute.
This single action has been pending in either a State or Federal forum for
nearly two years and none of the pending defendants are yet before the Court. It is
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time for this action to proceed.
Accordingly,
IT IS HEREBY ORDERED that no later than October 26, 2017, plaintiff
shall inform the Court as to the status of service upon foreign defendant All
Response Media, Ltd. In the event service of process has not yet been perfected,
plaintiff shall immediately take the necessary steps to cause process to issue in
accordance with the Federal Rules of Civil Procedure and shall certify to this Court
that it has done so.
IT IS FURTHER ORDERED that no later than October 26, 2017, plaintiff
shall file an appropriate motion for default and default judgment as to defendant
Roofpros, Inc., supported by all necessary affidavits and documentation, along with
a proposed order granting the motion for default by the Clerk of Court and a separate
proposed default judgment for my consideration. In the absence of filing a motion
for default and for default judgment, plaintiff shall show cause why its claims
against defendant Roofpros, Inc., should not be dismissed for failure to prosecute.

___________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 16th day of October, 2017.
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