Group Independent Sales Organization, Inc. v. Teleservice, Inc. et al

Filing 29

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FOR UNTIMELY SERVICE. Signed by Chief Judge Jon Phipps McCalla on 4/28/10. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION GROUP INDEPENDENT SALES ORGANIZATION, INC., Plaintiff, vs. TELESERVICES, INC. et al., Defendants. ) ) ) ) ) ) ) ) ) ) )

No. 2:09-cv-02231-JPM-cgc

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FOR UNTIMELY SERVICE Before the Court is Defendant Martin Rodrigues's pro se Motion to Dismiss for Untimely Service (Docket Entry ("D.E.") 27), filed December 28, 2009. this motion. GRANTED. The complaint in this matter was filed on April 17, 2009 (D.E. 1), and a summons was issued for Rodrigues on April 21, 2009 (D.E. 6). Rodrigues's motion is accompanied by a (Def.'s Plaintiff has not responded to

For the following reasons, Rodrigues's motion is

declaration indicating that he has not been served.

Mot. to Dismiss for Untimely Service Ex. 2, Decl. of Martin Rodrigues 1.) Rodrigues contends that he is subject to service (Id.) Federal Rule of Civil

outside the United States.

Procedure 4(m)'s requirement that service be made within 120 1

days of the filing of the complaint is thus inapplicable. Fed. R. Civ. P. 4(m).

See

Nonetheless, "[i]t is well established

that in cases involving improper service, courts have broad discretion to dismiss the action." Sherer v. Construcciones

Aeronauticas, S.A., 987 F.2d 1246, 1247 (6th Cir. 1993) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1354 at 288 (2d ed. 1987)). Plaintiff has made no effort to explain the lack of service or request an extension of time in which to effectuate service, despite the fact that this action was filed over a year ago. Rodrigues's motion is therefore GRANTED, and Plaintiff's claims against him are DISMISSED without prejudice. Cf. Fed. R. Civ.

P. 4(m) (allowing a district court to dismiss an action against a defendant without prejudice where service is untimely). IT IS SO ORDERED this 27th day of April, 2010.

/s/ Jon P. McCalla_______ JON P. McCALLA CHIEF U.S. DISTRICT JUDGE

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