City of Dayton, Ohio v. A.R. Environmental, Inc. et al

Filing 115

ORDER DISMISSING DEFENDANT ALEX PENLANDS PRO SE THIRD-PARTY CLAIMS AGAINST AGIS SURETY COMPANY AND AMERICAN CONTRACTORS INDEMNITY COMPANY; and ORDER DENYING DEFENDANT PENLAND'S MOTION FOR AMERICAN CONTRACTING SERVICES, INC. TO PROVIDE HIM WITH THE NAME OF STATUTORY AGENT FOR SERVICE (doc. 112). Signed by Magistrate Judge Michael J Newman on 10/16/2012. (Favret, Elizabeth)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CITY OF DAYTON,

:
Case No. 3:11-cv-383

Plaintiff,
-vs-

:

Magistrate Judge Michael J. Newman
(Consent Case)

A.R. ENVIRONMENTAL, INC., et al.,
Defendants.

:

ORDER DISMISSING DEFENDANT ALEX PENLAND’S PRO SE THIRD-PARTY
CLAIMS AGAINST AGIS SURETY COMPANY AND AMERICAN CONTRACTORS
INDEMNITY COMPANY

The Court was recently notified that Defendant/Third-Party Plaintiff Alex Penland had not
properly served Third-Party Defendants Agis Surety Company (“Agis”) and American Contractors
Indemnity Company (“ACI”): the individual who had accepted the summonses was not an agent
authorized to accept service of process for Agis and/or ACI. See doc. 108; Fed. R. Civ. P. 4(h).
Shortly thereafter, the Court issued an Order to Defendant Alex Penland to show cause, on or before
October 12, 2012, why it should not dismiss Agis and ACI for failing to properly serve these
business entities in accordance with Rule 4(h) (e.g., by serving an authorized agent) within Rule
4(m)’s 120-day deadline. See doc. 111. Instead of responding to the Show Cause Order, Penland
filed a motion apparently requesting that the Court order American Contracting Services, Inc. – a
Third-Party Defendant that has been dismissed from this case – to provide him with the names of
these entities’ statutory agents. See doc. 112.
To prevent the dismissal of his third-party claims against Agis and ACI under Rule 4(m),
Penland must show that good cause exists to excuse his failure to timely and properly serve these

parties. See Nafziger v. McDermott Int’l, Inc., 467 F.3d 514, 521-22 (6th Cir. 2006). He has failed
to do so. Accordingly, his third-party claims against Agis Surety Company and American
Contractors Indemnity Company are DISMISSED WITHOUT PREJUDICE; and the Clerk is
ORDERED to terminate them upon the docket.
Further, as Penland has failed to show how dismissed Third-Party Defendant American
Contracting Services, Inc. has an obligation to provide him with the names of the statutory agents for
Agis and ACI, his motion (doc. 112) is DENIED.

October 16, 2012

s/ Michael J. Newman
United States Magistrate Judge

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