Youngblood v. Metropolitan Life Insurance Company, Incorporated et al

Filing 13

ORDER to be STRICKEN from the record, re 10 Certification of Initial Attorneys Conference and Discovery Plan. Signed by Magistrate Judge Dennis Howell on September 13, 2010. (jhg)

Y o u n g b l o o d v. Metropolitan Life Insurance Company, et al

D o c . 13

IN THE UNITED STATES DISTRICT COURT FOR T H E WESTERN DISTRICT OF NORTH CAROLINA A S H E V IL L E DIVISION 1 :1 0 cv 105 M E L I S S A YOUNGBLOOD, P laintiff v M E T R O P O L I T A N LIFE INSURANCE C O M P A N Y and THE EATON C O R P O R A T IO N /2 7 7 0 1 EMPLOYEE W E L F A R E BENEFIT PLAN, Defendants. ) ) ) ) ) ) ) ) ) ) ) )

ORDER

T H E PARTIES came before the court to be heard on August 27, 2010 r eg a r d in g the Certification and Report of Rule 26(f) Conference and Discovery Plan (# 1 0 ). It was the intent of the undersigned to hear the parties in regard to the content o f a Pretrial Order and Case Management Plan to be entered in this case. The u n d ersig n ed entered an Order (#12) scheduling the hearing on August 20, 2010. Prior to the commencement of the hearing, the undersigned raised the issue about whether o r not there had been service upon defendant The Eaton Corporation/27701 Employee W e lf ar e Benefit Plan. The notation on the electronic file showed that service had been m a d e on June 10, 2010 (#3) but an examination of the actual return of service showed o n ly service upon defendant Metropolitan Life Insurance Company. At that time, the u n d ersig n ed addressed the parties regarding LCvR 16.1(A) and (B). An examination o f the Local Rules shows that at this point in time there has not been a joinder of the is su es because all the parties in this action have not been served with a copy of the

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S u m m o n s and Complaint. The Complaint in this action was filed on May 25, 2010. R u le 4(m) of the Federal Rules of Civil Procedure provides as follows: (m ) T im e Limit for Service. If a defendant is not served within 120 d a y s after the complaint is filed, the court ­on motion or on its o w n after notice to the plaintiff­must dismiss the action without p reju d ice against that defendant or order that service be made w ith in a specified time.

It would appear the time for plaintiff to make service upon The Eaton C o rp o ratio n /2 7 7 0 1 Employee Welfare Benefit Plan will expire on September 22, 2010. It would appear to be appropriate to strike the Certification and Report of Rule 2 6 (f) Conference and Discovery Plan (#10) and for the court to then wait and d eterm in e whether or not the plaintiff obtains service on the other defendant within th e time set forth by law.

ORDER IT IS, THEREFORE, ORDERED the Certification and Report of Rule 26(f) C o n f er en c e and Discovery Plan (#10) is hereby ordered to be STRICKEN from the reco rd .
Signed: September 13, 2010

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