Coach, Inc. et al v. Overton

Filing 20

ORDER - Plaintiffs shall have an extension of time to February 10, 2017, to file with the Clerk of Court evidence of valid service or a properly executed waiver of service for the defendant in accordance with Fed. R. Civ. P. 4. Ordered by Magistrate Judge F.A. Gossett. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
COACH, INC., and
COACH SERVICES, INC.,

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)
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Plaintiffs,
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v.
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JAMES R. OVERTON, III, d/b/a )
LANTEX LLC a/k/a FRESH WEAR, )
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Defendant.
)

8:16CV339
ORDER

This matter comes before the court on Plaintiffs’ Response to the Court’s December
6, 2016, Order (Filing No. 19), timely filed in response to the court’s order directing the
Plaintiffs to file evidence of valid service for the defendant or show cause why this case
should not be dismissed under Federal Rule of Civil Procedure 4(m). (Filing No. 16).
Plaintiffs’ response states that on July 12, 2016, they employed the services of
Thomas & Thomas Court Reporters and Certified Legal Video, LLC, to effect service on
the defendant. Plaintiffs made twenty-three attempts to serve the defendant between July
12, 2016, and September 2016. (Filing No. 19 at pp. 2-3). Counsel for Plaintiffs
exchanged several emails with Thomas & Thomas regarding their efforts to serve the
defendant. Plaintiffs researched the defendant’s appearance and vehicles and provided
that information to the process servers to attempt to serve the defendant. Personal service
was unsuccessful and the process servers indicated to counsel for Plaintiffs that the
defendant was avoiding service. As a result, Plaintiffs mailed a copy of the Complaint to
the defendant by first class mail. After review of Plaintiffs’ response, the court finds
Plaintiffs have acted diligently and shown good cause for the failure to timely serve the
defendant in accordance with Fed. R. Civ. P. 4(m).
Plaintiffs filed an affidavit from an attorney, Steve Lefler, dated December 23,
2016, wherein he avers that Overton was served with a summons and complaint “around
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the beginning of October,” and that Mr. Lefler will enter an appearance on behalf of
Overton, upon resolution of a fee arrangement. (Filing No. 19-5). Mr. Lefler has not yet
entered an appearance on behalf of the defendant and the defendant has not filed an answer
or otherwise responded to the Complaint. The court will not consider Mr. Lefler’s
affidavit as proof defendant has been properly served under Fed. R. Civ. P. 4. However,
for good cause shown, the court will permit Plaintiffs an extension of time to cure the
defects in service. Accordingly,

IT IS ORDERED: Plaintiffs shall have an extension of time to February 10, 2017,
to file with the Clerk of Court evidence of valid service or a properly executed waiver of
service for the defendant in accordance with Fed. R. Civ. P. 4.
DATED: January 11, 2017
BY THE COURT:
s/ F.A. Gossett
United States Magistrate Judge

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