Bourmaian v. Gillespie et al

Filing 22

ORDER Denying as Moot 11 Motion for Re-Service of Unserved Defendants by Plaintiff Vartkes Bourmaian. Signed by Magistrate Judge George Foley, Jr on 6/17/11. (Copies have been distributed pursuant to the NEF - ASB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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VARTKES BOURMAIAN,
#96851

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Plaintiff,
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vs.
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DOUGLAS GILLESPIE, et al.,
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Defendants.
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2:10-cv-02233-JCM-GWF
ORDER

This matter is before the Court on Plaintiff’s Motion for Re-Service of Unserved
Defendants (#11), filed May 10, 2011.
By way of this motion, Plaintiff requests that the Court enter an order allowing him

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additional time to serve certain named defendants or, alternatively, to serve the defendants by

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publication. Specifically, Plaintiff is seeking additional time to serve Defendants NaphCare, Inc.,

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Cornelus Henderson (named as “Nurse Cornelius”), Louis Rospowl (named as “Nurse Louis”),

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and Patricia Oliver (named as “Nurse Pat”). Each of these defendants has appeared in this case

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through their attorneys of record at the law firm of Alverson, Taylor, Mortensen & Sanders. On

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June 1, 2011, these defendants filed a motion to dismiss the claims against them pursuant to Rule

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12(b)(6). See (#14). In that motion, the defendants concede service and do not question

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sufficiency of service of process.

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Additionally, Plaintiff seeks an order allowing for additional time to serve Defendant

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Simone Russo, M.D. As with the other defendants, Defendant Russo has appeared through

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counsel. On June 6, 2011, he joined in the other defendants Rule 12(b)(6) motion and filed his

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own memorandum of points and authorities supporting the request for dismissal. See (#17). In

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that motion, Defendant Russo neither raises nor questions service.

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Based on the foregoing, the Court finds that Plaintiff’s motion is moot. Each of the

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defendants for whom service is requested has either conceded or waived the right to challenge

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service by filing a Rule 12(b)(6) motion without challenging process pursuant to Rule 12(b)(4) or

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service of process pursuant to Rule 12(b)(5). See FED . R. CIV . P. 12(h)(1)(A).

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IT IS HEREBY ORDERED that Plaintiff’s Motion for Re-Service of Unserved
Defendants (#11) is denied as moot.
DATED this 17th day of June, 2011.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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