24 Hour Fitness USA, Inc. et al v. McMahon

Filing 9

ORDER that Petitioners shall have up to and including 6/28/2012 to file proof of service of the summons and complaint. Signed by Judge Kent J. Dawson on 06/13/2012. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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24 HOUR FITNESS USA, INC., et al.,

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Petitioners,

Case No. 2:11-CV-01956-KJD-CWH
ORDER

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v.

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MICHAEL MCMAHAON,

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Respondent.

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Petitioners’ Petition to Compel Arbitration (#1) was filed on December 7, 2011. Federal

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Rule of Civil Procedure 4(m) requires service of summons and complaint to be made upon a

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respondent 120 days after the filing of the complaint or petition. The 120 day time period for

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effecting service of the summons and complaint upon Respondent expired no later than April 5,

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2012. On January 24, 2012, Petitioners filed “Proof of Service by Personal Delivery” (#6). The

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affidavit asserted that the civil cover sheet, certificate of interested parties, petition to compel

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arbitration and an accompanying declaration were served on what appears to be an attorney.

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However, the proof of service did not disclose the attorney’s relationship to the Respondent.

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Furthermore, the proof of service did not mention service of a summons.

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On May 4, 2012, Petitioners filed a Proposed Summons (#7) which was subsequently issued

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(#8). The issued summons identified Respondent as the party to be served with an address different

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than that described in the proof of service (#6). It appears that Petitioners have not yet adequately

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served Respondent.

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Accordingly, IT IS HEREBY ORDERED that Petitioners shall have up to and including June

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28, 2012 to file proof of service of the summons and complaint within the allowed time. If

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Petitioners fail to respond or to file proof of service within the allowed time, the Court will dismiss

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the complaint without prejudice against Respondent in accordance with Federal Rule of Civil

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Procedure 4(m).

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DATED this 13TH day of June 2012.

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_____________________________
Kent J. Dawson
United States District Judge

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