Roeschen's Healthcare LLC v. Millway Health Care LLC

Filing 14

ORDER signed by Judge J P Stadtmueller on 4/29/09 denying as moot 3 defendant's motion to dismiss due to insufficient service of process. (cc: all counsel) (nm)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN ____________________________________________ R O E S C H E N 'S HEALTHCARE, LLC, d /b /a Roeschen's Omnicare Plaintiff, v. M IL L W A Y HEALTH CARE, LLC, d /b /a Millway Care Center, Defendant. ____________________________________________ C a s e No. 09-CV-205 ORDER P la in t iff Roeschen's Healthcare, LLC ("Roeschen's Healthcare") filed suit in s ta te court against Defendant Millway Health Care, LLC ("Millway") alleging claims fo r breach of a promissory note, breach of a pharmacy services agreement, quantum m e ru it, and unjust enrichment. Millway subsequently removed the case to this court b a s e d on diversity. After removal, Millway filed a motion to dismiss the action due to insufficient service of process, pursuant to Federal Rule of Civil Procedure 1 2 (b )(5 ). In its motion, Millway asserts that the company's registered agent, M a u re e n Molony ("Molony") was not personally served. Instead, the plaintiff left the s u m m o n s and complaint at the Milwaukee, W is c o n s in , office of Molony's law firm, in s te a d of serving her at the Madison office, her business address. In response to M illw a y 's motion to dismiss, Roeschen's Healthcare served Molony personally at her M a d is o n office on March 10, 2009, and filed a return of service with the court. The s u m m o n s indicates that Millway must file an answer within twenty days of service, a deadline of March 30, 2009. However, Millway failed to file an answer. On April 1 6 , 2009, Roeschen's Healthcare filed a motion for default judgement. M illw a y 's motion to dismiss remains pending before the court. However, the c o u rt finds that Millway's motion is moot because Roeschen's Healthcare cured any d e fic ie n t service by personally serving Molony at her Madison office on March 10, 2 0 0 9 . Therefore, the court will deny Millway's motion. Roeschen's Healthcare's motion for default judgment is also pending before th e court. To date, Millway has filed neither an answer to Roeschen's Healthcare's c o m p la in t, nor a response to the motion for default judgment. Unless such a p le a d in g is filed, the court will be compelled to enter an order for default judgment. A c c o rd in g ly, IT IS ORDERED that the defendant's motion to dismiss due to insufficient s e rvic e of process (Docket #3) be and the same is hereby DENIED as moot. D a te d at Milwaukee, W is c o n s in , this 29th day of April, 2009. BY THE COURT: J .P . Stadtmueller U .S . District Judge -2-

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