GALMAN v. SYSCO FOOD SERVICES OF METRO NEW YORK LLC et al

Filing 48

MEMORANDUM & ORDER - Galman's request (Dkt. No. 46 ) that the Court disallow Sysco Corporation's motion to dismiss (Dkt. No. 44 ) is DENIED. Should Galman wish to oppose that motion, he may do so by 9/3/2015. Should Sysco Corporation wish to file a reply brief, it may do so by 9/10/2015. Signed by Judge Kevin McNulty on 8/12/2015. (anr)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DANIEL GALMAN, JR.,

Civ. No. 13-7800 (KM)(MAH)

Plaintiff,
V.

MEMORANDUM AND ORDER
SYSCO FOOD SERVICES OF METRO NEW
YORK, LLC; SYSCO CORPORATION;
SHELLY BUDHAR, JOHN DOES 1-10;
JANE DOES 1-10; and ABC
CORPORATIONS A THROUGH Z,
Defendants.
The plaintiff, Daniel Galman, Jr., has asked the Court (Dkt. No. 46) to
disallow a motion to dismiss by defendant Sysco Corporation and to telephone
plaintiff’s counsel with its decision. Galman seems to argue that the motion is
untimely. I disagree, and will consider the motion.
The original complaint (Dkt. No. 1) was filed on December 23, 2013. It
named three defendants: Sysco Food Services of Metro New York, LLC; Sysco
Corporation Retirement Fund; and Shelly Budhar. I dismissed that complaint
without prejudice. (Dkt. No. 33)
In his first amended complaint (FAC) (Dkt. No. 34-1), Galman replaced
defendant Sysco Corporation Retirement Fund with defendant Sysco
Corporation. Although Galman filed the FAC on May 5, 2015, he did not serve
the new defendant, Sysco Corporation, until July 13, 2015. (There is no
indication that Galman ever requested that Sysco Corporation waive service
under FED. R. CIV. P. 4(d)). In the meantime, the other two defendants, Sysco
Food Services of Metro New York, LLC and Shelly Budhar, filed a motion to
dismiss the FAC (Dkt. No. 35). After the remaining defendant, Sysco
Corporation, was served, it filed a separate motion to dismiss (Dkt. No. 44) on
August 3, 2015.

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Galman asks this Court (Dkt. No. 46) to “disallow” Sysco Corporation’s
motion to dismiss. He argues that the “Defendants” were “put on notice” by the
FAC and that any arguments pertaining to Sysco Corporation should have been
included in the other two defendants’ motion to dismiss (Dkt. No. 35). (See Dkt.
No. 46, 2)
Federal Rule of Civil Procedure 12(a)(1)(A)(i) gives a defendant 21 days
from when it is served with a summons to file either a responsive pleading or
(as in this case) a responsive motion. Here, Sysco Corporation was served a
summons on July 13, 2015. It therefore had until August 3, 2015, to file an
answer or other motion. Sysco Corporation timely filed its motion to dismiss
(Dkt. No. 44) on August 3, 2015. Sysco Corporation could, in theory, have
waived service and had time to join the other two defendants’ motion to
dismiss. (Dkt. No 33) Nothing in the federal rules, however, required Sysco
Corporation to do so—especially absent any request from Galman. Because
Sysco Corporation was not required to join the prior motion in advance of being
served, it would not be fair or sensible now to deny Sysco Corporation the
opportunity to file a motion to dismiss. The motion may or may not be granted,
but in general I prefer to reach the merits and will not lightly grant motions to
strike pleadings, “disallow” motions, and the like, which are often a waste of
the parties’ and the court’s time and resources.
For these reasons, IT IS this 12th day of August 2015 ORDERED that
Galman’s request (Dkt. No. 46) that the Court disallow Sysco
Corporation’s motion to dismiss (Dkt. No. 44) is DENIED. Should
Galman wish to oppose that motion, he may do so by SEPTEMBER 3,
2015. Should Sysco Corporation wish to file a reply brief, it may do so by
SEPTEMBER 10, 2015.

Kevin McNulty
United States District Judge
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