Sun Specialized Heavy Haul, LLC v. Ace Heavy Haul, LLC et al

Filing 36

OPINION AND ORDER by Chief Judge Gregory K Frizzell ; terminating party Medallion International, LLC ; granting 32 Motion to Dismiss Party (kjp, Dpty Clk)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA SUN SPECIALIZED HEAVY HAUL, LLC, Plaintiff, v. ACE HEAVY HAUL, LLC; MEDALLION TRANSPORT & LOGISTICS, LLC; MEDALLION INTERNATIONAL, LLC; JOHN DOE, individual; and JOHN DOE, corporation, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 16-CV-491-GKF-PJC OPINION AND ORDER Before the court is the Motion to Dismiss of defendant Medallion International, LLC (“Medallion International”) [Doc. No. 32]. For the reasons set forth below, Medallion International’s motion is granted. I. Background This dispute arises from a contract between plaintiff Sun Specialized Heavy Haul, LLC (“Sun”) and Ace Heavy Haul, LLC (“Ace”). On February 16, 2016, Sun filed suit in Oklahoma state court, naming Ace, Medallion Transport & Logistics, LLC (“Medallion Transport”), and Medallion International as defendants. Sun served Ace and Medallion Transport on July 6, 2016; Medallion International, however, was never served. On July 26, 2016, the case was removed to this court on the basis of diversity jurisdiction. [Doc. No. 2]. Medallion International now moves for dismissal under Fed. R. Civ. P. 12(b)(5). [Doc. No. 32]. II. Legal Standard 28 U.S.C. § 1448 provides that, in case of removal, all unserved defendants shall be served “in the same manner as in cases originally filed in such district court,” id.—that is, “within 90 days after the complaint is filed,” Fed. R. Civ. P. 4(m). “Failure to properly serve [a] [d]efendant[ ] deprives th[e] court of personal jurisdiction,” which is “fatal to the maintenance of an action.” Hutto v. United States Gov’t, No. 09-CV-737-JHP-FHM, 2010 WL 2854685, at *3 (N.D. Okla. July 16, 2010). Such a failure is evaluated under a “two-step analysis.” Womble v. Salt Lake City Corp., 84 Fed. App’x 18, 20 (10th Cir. 2003). First, the court considers “whether the plaintiff has shown good cause for the failure to effect timely service.” Quazilbash v. Wells Fargo & Co., No. 09-CV-0652-CVE-FHM, 2010 WL 597132, at *1 (N.D. Okla. Feb. 16, 2010) (quotation marks omitted). If shown, “the court must extend the time for service.” Id. Second, absent good cause, the court considers “whether the plaintiff should be afforded a permissive extension.” Id. (quotation marks omitted). A “grant of additional time remains discretionary with the” court. Cloyd v. Arthur Andersen & Co., 25 F.3d 1056 (Table), 1994 WL 242184, at *2 (10th Cir. 1994). III. Analysis This case was removed to federal court on July 26, 2016. [Doc. No. 2]. Under 28 U.S.C. § 1448, Sun had until October 27, 2016 to serve Medallion International, but failed to do so. See 28 U.S.C. § 1448. Moreover, no extension of that service period is warranted. Sun offers no basis on which the court could grant a for-cause or permissive extension of the service window. Indeed, it has not responded to Medallion International’s motion whatsoever. Thus, because Sun has not been “‘meticulous in [his] efforts to comply with’” service requirements, Quazilbash, 2 2010 WL 597132, at *1 (quoting Despain v. Salt Lake Area Metro Gang Unit, 13 F.3d 1436, 1438 (10th Cir. 1994)), this court lacks jurisdiction. Hutto, 2010 WL 2854685, at *3. WHEREFORE, Medallion International’s Motion to Dismiss [Doc. No. 32] is granted. IT IS SO ORDERED this 16th day of December, 2016. 3

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