Pitts v. All-Dry of the Carolinas, Inc. et al

Filing 11

ORDER that the 9 Order to Show Cause is hereby DISCHARGED. FURTHER ORDERED within 14 days of the entry of this Order, Pltf shall file an appropriate motion or otherwise take further action with respect to Deft All-Dry of the Carolinas, Inc. Signed by District Judge Martin Reidinger on 10/15/14. (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:14-cv-00142-MR-DLH

ROBERT M. PITTS, Trustee in
Bankruptcy for Sharon Ford,

)
)
)
Plaintiff,
)
)
vs.
)
)
ALL-DRY OF THE CAROLINAS, INC., )
OWNERS INSURANCE COMPANY,
)
and AUTO-OWNERS INSURANCE
)
COMPANY,
)
)
Defendants.
)
________________________________ )

ORDER

THIS MATTER is before the Court on the Plaintiff’s Response to
Order to Show Cause Dated October 6, 2014 [Doc. 10].
The Plaintiff initiated this action in the Haywood County General
Court of Justice, Superior Court Division, on May 7, 2014 against three
defendants: All-Dry of the Carolinas, Inc. (“All-Dry”), Owners Insurance
Company (“Owners Insurance”), and Auto-Owners Insurance Company
(“Auto-Owners Insurance”). [Doc. 1-1]. Defendants Owners and Insurance
and Auto-Owners Insurance (“the removing Defendants”) filed a Notice of
Removal on June 6, 2014.

[Doc. 1].

In their Notice of Removal, the

removing Defendants note that there is nothing in the State court file

indicating or otherwise suggesting that All-Dry had been served with
process in the State court action. [Id. at 2]. More than 120 days passed
from the filing of the Notice of Removal, and the Plaintiff had still not filed
anything to indicate that service was effected on All-Dry. Accordingly, on
October 6, 2014, the Court entered an Order directing the Plaintiff to show
cause for his failure to effect service on this Defendant. [Doc. 9].
The Plaintiff now responds to the Show Cause Order, stating that AllDry was served on May 12, 2014, prior to removal from state court on June
6, 2014.

[Doc. 10].

The Affidavit of Service was signed by Plaintiff’s

counsel on May 27, 2014 but was not filed with the federal court. Instead,
Plaintiff’s counsel filed the Affidavit of Service with the state court on June
10, 2014, four days after the action was removed.
While the Plaintiff has presented evidence to indicate that All-Dry has
been served, he has failed to take any further action with respect to this
Defendant.
Accordingly, IT IS, THEREFORE, ORDERED that the Show Cause
Order [Doc. 9] is hereby DISCHARGED.
IT IS FURTHER ORDERED within fourteen (14) days of the entry of
this Order, the Plaintiff shall file an appropriate motion or otherwise take
further action with respect to Defendant All-Dry of the Carolinas, Inc. The
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Plaintiff is advised that failure to take further action against All-Dry will
result in the dismissal of this Defendant.
IT IS SO ORDERED.
Signed: October 15, 2014

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