Wall et al v. Cytosport et al

Filing 5

MEMORANDUM OPINION finding the defendant Cytosport's motion to dismiss well taken, and the motion 3 is GRANTED. This action is hereby DISMISSED without prejudice, as to all defendants. Signed by District Judge Thomas W Phillips on June 6, 2013. (AYB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

CHANELL WALL, Conservator of
MARQUISE STEVEN WALL; and
MARQUISE STEVEN WALL,
Plaintiffs,
v.
CYTOSPORT, INC., GAT, and
CITY OF GATLINBURG, TENNESSEE,
Defendants.

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No. 3:12-CV-561
(Phillips)

MEMORANDUM OPINION

This matter is before the court on the motion of the defendant Cytosport Inc.,
to dismiss plaintiffs’ complaint. Plaintiffs have failed to respond to the motion to dismiss,
and pursuant to LR 7.2, their failure to respond will be deemed a waiver of any opposition
to the relief sought. Because plaintiffs have failed to obtain service of process on the
defendants, Cytosport’s motion to dismiss will be granted and this action dismissed.

The record in this case shows that plaintiffs filed their complaint on October
26, 2012, and summons were issued to plaintiff for service upon defendants. On April 4,
2013, defendant Cytosport filed a motion to dismiss the complaint because Cytosport had
not been served with process as required by Rule 4. Federal Rules of Civil Procedure.
After plaintiffs failed to respond to the motion to dismiss, the court issued an order requiring

plaintiffs to show cause in writing on or before May 31, 2013, why defendant’s motion
should not be granted and this action dismissed for failure to prosecute. Plaintiffs failed to
respond to the court’s show cause order.

Rule 4(m) of the Federal Rules of Civil Procedure states:
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 the
defendant or order that service be made within a specified
time.
Here, plaintiffs have failed to serve the summons and complaint on any defendant within
120 days of filing the complaint; defendant Cytosport has filed a motion to dismiss, which
plaintiffs have failed to respond to; and plaintiffs have failed to respond to the court’s show
cause order, indicating to the undersigned that they have no interest in prosecuting this
action.

Accordingly, the court finds the defendant Cytosport’s motion to dismiss well
taken, and the motion [Doc. 3] is GRANTED. This action is hereby DISMISSED without
prejudice, as to all defendants.

ENTER:
s/ Thomas W. Phillips
United States District Judge