King-Flitton v. Davis School District et al
Filing
25
ORDER denying 19 Second Motion to Dismiss. Plaintiff is granted thirty days in which to effect service of Defendant Bouvang. Counsel is instructed to read the full order of the Court. Signed by Judge Dale A. Kimball on 7-22-15. (sih)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION
SARA KING-FLITTON,
Plaintiff,
MEMORANDUM DECISION
AND ORDER
vs.
DAVIS SCHOOL DISTRICT and
BECKY BOUVANG,
Case No. 1:14CV97DAK
Judge Dale A. Kimball
Defendants.
This matter is before the court on Defendant Becky Bouvang’s Second Motion to
Dismiss. The motion is fully briefed. The court concludes that a hearing would not significantly
aid in its determination of the motion. Accordingly, the court issues the following Memorandum
Decision and Order based on the briefs submitted by the parties.
The court previously denied a similar motion to dismiss filed by Bouvang and allowed
Plaintiff thirty days to effect service. The district court may grant an extension of time to serve
the complaint after the 120-day period. Henderson v. United States, 517 U.S. 654, 661 (1996).
Plaintiff’s response to Defendant’s current motion mistakenly claims that the court granted an
additional 120 days. Because the court found that Plaintiff had shown little evidence that there
was good cause to extend the 120-day service period, the court granted thirty additional days
instead of Plaintiff’s requested 120 days. Therefore, Defendant’s motion was timely filed after
Plaintiff had failed to serve Bouvang within the extended time period.
Plaintiff questions whether Bouvang is possibly evading service of process. However, as
with Defendant’s counsel, the court was able to locate an address for Defendant with a simple,
free internet search. The court cannot understand why Plaintiff cannot effect service when the
information is readily available. Plaintiff’s counsel has no grounds for attacking Defendant’s
counsel in the manner he did in his response. Plaintiff failed to follow the Order of this court and
it is well within the court’s discretion to dismiss the case against Bouvang without prejudice.
However, the court is again faced with the situation where a dismissal without prejudice
would lead to Plaintiff filing a separate lawsuit against Bouvang and motion to consolidate. In its
prior Order, the court explained that it believes such a result would waste judicial resources and
serve little purpose. The court, therefore, will again grant Plaintiff a thirty-day extension from
the date of this Order in which to effect service of Bouvang. The court will not extend the time
any further. If Plaintiff has not filed proof of service within thirty-five days of the date of this
Order, the court will sua sponte dismiss the case against Becky Bouvang without prejudice.
Accordingly, Defendant’s Second Motion to Dismiss is denied.
DATED this 22d day of July, 2015.
BY THE COURT:
DALE A. KIMBALL
United States District Judge
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?