Zekthi v. Performant Recovery, Inc.

Filing 5

MEMORANDUM AND ORDER - Accordingly, IT IS HEREBY ORDERED that plaintiff shall cause service of the amended complaint to be effected upon defendants Performant Recovery, Inc., and Performant Technologies, Inc., not later than November 22, 2016. In the absence of good cause shown, failure to effect timely service shall result in the dismissal without prejudice of plaintiff's claims against any unserved defendant. Signed by District Judge Catherine D. Perry on September 20, 2016. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANDI ZEKTHI,
Plaintiff,
v.
PERFORMANT RECOVERY, INC.
et al.,
Defendants.

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No. 4:16 CV 1215 CDP

MEMORANDUM AND ORDER
This matter is before me for sua sponte review under Rule 4(m), Federal
Rules of Civil Procedure.
Plaintiff Andi Zekthi originally brought this action against defendant
Performant Recovery, Inc., raising claims under the Fair Debt Collection Practices
Act, 15 U.S.C. §§ 1692, et seq., and the Telephone Consumer Protection Act, 47
U.S.C. § 227, as well as various state law claims. Summons issued, and Zekthi
timely served the defendant. Performant Recovery’s responsive pleading was due
no later than August 24, 2016. On August 24, however, Zekthi filed an amended
complaint, adding Performant Technologies, Inc., as a defendant. At the time
Zekthi filed the amended complaint, Performant Recovery had neither entered an
appearance nor responded to the original complaint.
Under Fed. R. Civ. P. 4(m) (rev. 2015), the Court, after notice to the plaintiff,

is directed to dismiss an action against a defendant upon whom service has not been
made within ninety days after the filing of the complaint. Adding a new party
through an amended complaint initiates a new ninety-day timetable for service upon
the added defendant. 4B Charles Alan Wright, et al., Federal Practice and
Procedure § 1137 (4th ed. 2015). Accordingly, the Rule 4(m) period for service of
the amended complaint upon newly added defendant Performant Technologies
expires in this matter on November 22, 2016.
Defendant Performant Recovery, however, was previously served with the
original complaint and is not a newly added defendant. There is no indication in the
file as to whether (or when) Performant Recovery was served with the amended
complaint. Since Performant Recovery had not yet entered on the original
complaint, I will give Zekthi ninety days from the filing of the amended complaint
by which to effectuate service on this defendant. Under Fed. R. Civ. P. 15(a)(3),
however, Performant Recovery will have only fourteen days from service within
which to answer or otherwise respond to the amended complaint.1
Accordingly,
IT IS HEREBY ORDERED that plaintiff shall cause service of the
amended complaint to be effected upon defendants Performant Recovery, Inc.,
and Performant Technologies, Inc., not later than November 22, 2016. In the
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Summons issued on the amended complaint to Performant Recovery must state this time period
within which it must appear and defend. Fed. R. Civ. P. 4(a)(1)(D).
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absence of good cause shown, failure to effect timely service shall result in the
dismissal without prejudice of plaintiff’s claims against any unserved defendant.

_________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 20th day of September, 2016.

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