3M Company v. Premium Contractor Solution, LLC

Filing 49

ORDER REQUIRING THIRD-PARTY PLAINTIFF PREMIUM CONTRACTOR SOLUTION, LLC TO PROVIDE A STATUS REPORT REGARDING ITS EFFORTS TO PERFECT SERVICE ON THIRD-PARTYDEFENDANTS : The Court ORDERS Third-Party Plaintiff Premium Contractor Solution, LLC to inform th e Court either during the on-the-record May 19, 2021, Telephone Status Conference or in a written filing prior to that conference of the efforts that it has taken to serve a copy of the summons and complaint on any third-party defendant who has not yet appeared in this action. Signed by Judge Thomas M. Rose on 5/12/21. (ep)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
3M COMPANY,

:
:
Plaintiff,
:
Case No. 3:20-cv-443
:
v.
:
Judge Thomas M. Rose
:
PREMIUM CONTRACTOR SOLUTION,
:
LLC,
:
:
Defendant/Third-Party Plaintiff,
:
:
v.
:
:
HK HUATENT TELECOM TECHNOLOGY :
CO., LTD., et al.,
:
:
Third-Party Defendants.
:
______________________________________________________________________________
ORDER REQUIRING THIRD-PARTY PLAINTIFF PREMIUM
CONTRACTOR SOLUTION, LLC TO PROVIDE A STATUS REPORT
REGARDING ITS EFFORTS TO PERFECT SERVICE ON THIRD-PARTY
DEFENDANTS
______________________________________________________________________________
The operable Third-Party Complaint in this matter was filed on February 10, 2021. (ECF
No. 29.) More than 90 days have now passed since the filing of that third-party complaint. The
Court ORDERS Third-Party Plaintiff Premium Contractor Solution, LLC to inform the Court—
either during the on-the-record May 19, 2021 Telephone Status Conference or in a written filing
prior to that conference—of the efforts that it has taken to serve a copy of the summons and
complaint on any third-party defendant who has not yet appeared in this action.
Based on the addresses listed for the third-party defendants in the Amended Third-Party
Complaint, all of the named third-party defendants are located in foreign countries with the
exception of Xiaoli Yang and Lawrence Group, Inc. (ECF No. 29 at PageID 270-71.) Third-Party
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Plaintiff has filed an affidavit of service regarding Xiaoli Yang and Lawrence Group, and an
attorney has filed a notice of appearance on behalf of each of those two parties. (ECF Nos. 37, 38,
39, 40.) As Third-Party Plaintiff is presumably aware, courts require that a copy of the complaint
and summons be served by specific means on defendants. See generally Fed. R. Civ. P. 4.
“Because district courts need to be able to control their dockets, Rule 4(f) authorizes a withoutprejudice dismissal when the court determines in its discretion that the plaintiff has not
demonstrated reasonable diligence in attempting service.” Lozano v. Bosdet, 693 F.3d 485, 489
(5th Cir. 2012); see also 4B Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1137 (4th ed.) (“if service in a foreign country is not pursued in a diligent fashion, the
district court can dismiss the action because of the plaintiff’s failure to prosecute”). Thus, the
Court puts Third-Party Plaintiff on notice that a defendant may be dismissed for failure to
prosecute when a plaintiff has not exercised due diligence in attempting to serve that defendant.
See, e.g., Best v. Mobile Streams, Inc., No. 1:12-cv-564, 2014 U.S. Dist. LEXIS 31316, 2014 WL
950961, at *2-4 (S.D. Ohio Mar. 11, 2014) (dismissing claims against certain defendants for failure
to properly serve those defendants).
DONE and ORDERED in Dayton, Ohio, this Wednesday, May 12, 2021.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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