Spears v. American Strategic Insurance Corp.

Filing 25

ORDER DISMISSING SEEK NOW'S THIRD-PARTY COMPLAINT WITHOUT PREJUDICE - in light of Seek Now's failure to serve Strasser or to otherwise respond to the Second Order to Show Cause, Seek Now's Third-Party Complaint against Dallas Strasser is hereby DISMISSED WITHOUT PREJUDICE. Signed by Judge Matthew W. McFarland on 01/28/2025. (bjc)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO

WESTERNDIVISION- CINCINNATI
Case No. l:23-cv-495

ELISE SPEARS/

Plaintiff,

Judge Matthew W. McFarland

V.

AMERICAN STRATEGIC
INSURANCECORP./ et al.,
Defendants.

ORDERDISMISSINGSEEKNOW'S
THIRD-PART^ COMPLAINT WITHOUT PREJUDICE

This matter is before the Court sua sponte. On March 7, 2024/ Defendant Seek

Now/ Inc. filed a Third-Party Complaint against Dallas Strasser. (See Third-Party

Complaint, Doc.20.) OnAugust9/2024,theCourt orderedSeekNowto showcausewhy
the Third-Party Complamt should not be dismissed for failure of service. (See Order to
Show Cause/ Doc. 22. ) In response/ Seek Now explained that it had unsuccessfully

attempted to serveSfcrasserthrough certified mail andwould attempt service again.(See
Response, Doc. 23. ) On December 12, 2024, the Court ordered Seek Now to show cause
for a second time why the Third-Party Complaint should not be dismissed. (See Second
Order to Show Cause, Doc. 24. ) Seek Now has not responded to the Second Order to
Show Cause/ and the record contains no indication of service or that Strasser waived

service. Additionally/ the docket does not reflect certified mailings by the Clerk. SeeS. D.
Ohio Civ. R. 4. 2.

"Plaintiff bears the burden of exercising due diligence in perfecting service of
process and in showing that proper service has been made. " Beyoglides v. M.ontgomen/

Cnty. Sheriff,166F. Supp. 3d 915,917(S.D. Ohio2016) (citations omitted); seealsoFed. R.
Civ. P. 4(1)(1).
Federal Rule of Civil Procedure 4(m) provides, in pertinent part:

If a defendant is not served within 90 days after the complaint is filed/ the
court-on motion or on its own after notice to the plaintiff-must dismiss

the actionwithout prejudice againstthat defendant or order that service be
made within a specified time. But if the plaintiff shows good cause for the
failure/ the court must extend the time for service for anappropriate period.
Courts have looked to this deadline when considering a party's obligation to serve third-

party defendants. See, e.g.. City of Dayton v. A. R. Env't, Inc., No. 3:11-CV-383/ 2012 WL
6923584, at *1 (S. D. Ohio Oct. 12, 2012); Berg Corp. v. C. Norris Mfg., LLC, No. 5:20-CV2297, 2021 WL 915895, at *2 (N. D. Ohio Mar. 10, 2021).

Accordingly/ in light of Seek Now's failure to serve Strasser or to otherwise

respond to theSecondOrderto ShowCause,SeekNow'sThird-Party Complaint against
Dallas Strasser is hereby DISMISSEDWITHOUT PREJUDICE.
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT

SOUTHERNDISTRICTOF OHIO

By:

^(^JW.^
JUDGE MATTHEW W. McFARLAND