Stephenson v. Cincinnati, Inc. et al
Filing
9
ORDER by District Judge James H. Payne: dismissing without prejudice defendant Captive Aire Systems, Inc. (cjt, Deputy Clerk)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
ERIC STEPHENSON,
Plaintiff,
v.
CINCINNATTI, INC., and
CAPTIVE AIRE SYSTEMS, INC.
Defendants.
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Case No. 11-CIV-294-JHP
ORDER
Federal Rule of Civil Procedure 4(m) provides:
If a defendant is not served within 120 days after the complaint is
filed, the court--on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that 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 an appropriate period. This subdivision (m) does not apply
to service in a foreign country under Rule 4(f) or 4(j)(1).
When a case is removed from state court, the 120 day time period begins anew from the date the
action was removed.1
The current litigation was filed by Plaintiff in an amended petition dated August 19, 2011
in Muskogee County District Court against Defendants Cincinnati Inc., Cincinnati Press, and
1
See Wallace v. Microsoft Corp., 596 F.3d 703, 706 (10th Cir.2010) (“Taken together,
Mr. Wallace argues that, once his case was removed, he then had 120 days in which to effect
service. We agree”).
Captive Aire Systems, Inc.2 It was removed by Defendant Cincinnati Inc. on August 23, 2011.3
Defendant Cincinnati Inc. subsequently moved to amend the caption of this case, stating that the
named Defendant “Cincinnati Press” did not exist.4 The Court then ordered Rule 7.1(a) corporate
disclosure statements, and after receiving a disclosure statement from Cincinnati Inc., the Court
granted Defendant Cincinnati Inc.’s Motion to Amend Caption.5
On January 13, 2012, this Court issued a minute order requiring the Plaintiff to show cause
why Defendant Captive Aire Systems, Inc. should not be dismissed for Plaintiff’s failure to properly
serve said Defendant as required by Federal Rule of Civil Procedure 4(m).6 The deadline for
Plaintiff’s Response to the Court’s show cause order was January 27, 2012.7 The Plaintiff has failed
to respond to this Court’s show cause order. Further, as of the date of this Order, the Plaintiff has
failed to issue summons or serve party Captive Aire Systems, Inc.
The Plaintiff, as the initiator of the litigation is required to take the steps necessary to ensure
the Defendants are properly served in this litigation. Plaintiff did not properly perfect service upon
Defendant Captive Aire Systems, Inc. within 120 days from the date this action was removed from
2
See Amended Petition at 1, Docket 2-1. The original Petition was dated December 2,
2010, but Defendant Captive Aire Systems, Inc was not added until Plaintiff filed his Amended
Petition. See Petition at 1, Docket 2-3.
3
Docket No. 2.
4
Docket No. 4
5
See Docket No.’s 5, 6, 7.
6
Docket No. 8.
7
Id.
state court. Therefore, it is the Order of the Court that Plaintiff’s action as against Defendant Captive
Aire Systems, Inc. is DISMISSED WITHOUT PREJUDICE.8
Dated this 2nd day of February, 2012.
8
The Court notes that remand of this case for Defendant’s failure to comply with the
unanimity of consent requirement for removal under 28 U.S.C. §1446(a) would be improper.
District Courts within the Tenth Circuit have recognized an exception to the unanimity
requirement regarding defendants who have not yet been served. See, e.g., Cohen v. Hoard, 696
F.Supp. 564, 566 (D.Kan.,1988). As Defendant Captive Aire Systems, Inc. has yet to be served,
§1446(a) does not require it join Cincinnati Inc.’s removal petition for the petition to be
procedurally valid.
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