Free Motion to Dismiss/Insufficency of Service - District Court of Delaware - Delaware

Case 1:07-cv-00261-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MICHAEL KEVIN HOFFMAN, Plaintiff, v. WARDEN ROBERT GEORGE, CORRECTIONAL MEDICAL SERVICES, Defendants. : : : : : : : : : : :

C.A. No. 07-261 JJF

DEFENDANT CORRECTIONAL MEDICAL SERVICES, INC.'S MOTION TO DISMISS PURSUANT TO RULE 4 (m)1 Defendant Correctional Medical Services, Inc. ("CMS") hereby moves for entry of an order in the form attached hereto dismissing the Plaintiff's claims against it for failure timely to serve process. In support of this Motion, CMS states as follows: 1. On May 15, 2007, Plaintiff filed his Complaint alleging civil rights violations against

CMS and other medical providers and prison officials. (D.I. 2) On June 19, 2007, Plaintiff filed his Motion to Amend/Correct. (D.I. 13) On July 3, 2007, the Court entered its Order stating that D.I. 13 was to be construed as an Amended Complaint and dismissing the claims against all defendants except CMS and Warden Robert George and was deemed filed as of the date of the Order (July 3, 2007). (D.I. 19) 2. The Court's July 3 order also instructed the Plaintiff to forward USM 285 forms for

service on Mr. George and CMS. The Docket reflects that USM 285 forms for George and CMS

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CMS reserves all defenses and does not, by the filing of this Motion for the limited and exclusive purpose of petitioning the Court to dismiss all claims against it, intend to waive any defense available to it.

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exited to the U.S. Marshall's Service on August 9, 2007. (Exhibit "A") The Docket further reflects that Attorney General Biden was served on August 22, 2007. (Id.) 3. On September 4, 2007, the Court docketed item number 32, a letter from Plaintiff

announcing that he had been released from incarceration on August 22, 2007 and was now living in Bear, Delaware. (D.I. 32) 4. 31) 5. On October 1, 2007, the Court docketed Plaintiff's second change of address letter, On September 6, 2007, the Court docketed Defendant George's Waiver of Service. (D.I.

stating Plaintiff's new address in Philadelphia, Pennsylvania. (D.I. 34) 6. 7. As of the date of this Motion, CMS has not been served. As of the date of this Motion, 159 days have passed since the USM 285 forms were sent

to the US Marshall for service (August 9, 2007) without service on CMS. 8. As of the date of this Motion, 196 days have passed since the Amended Complaint was

deemed filed (July 3, 2007) without service on CMS. 9. Federal Rule of Civil Procedure 4(m) provides: (m) Time Limit for Service. 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 that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1). 10. Because the Plaintiff was released from incarceration on August 22, 2007, the Court's

duty to assist in service was terminated as of that date. It has been 146 days since Plaintiff was released and still CMS has not been served.

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11.

Pursuant to Fed.R.Civ.P. 4(m), the Plaintiff's claims against CMS should be dismissed.

WHEREFORE, for the foregoing reasons, defendant Correctional Medical Services, Inc. respectfully requests entry of the order attached hereto dismissing all claims against Correctional Medical Services, Inc.

BALICK & BALICK, LLC

/s/ James E. Drnec James E. Drnec, Esquire (#3789) 711 King Street Wilmington, Delaware 19801 302.658.4265 Attorneys for Defendant Correctional Medical Services, Inc. Date: January 15, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MICHAEL KEVIN HOFFMAN, Plaintiff, v. WARDEN ROBERT GEORGE, CORRECTIONAL MEDICAL SERVICES, Defendants. : : : : : : : : : : :

C.A. No. 07-261 JJF

ORDER

AND NOW, this

day of

, 2008, this Court having considered

Defendant Correctional Medical Services, Inc.'s Motion to Dismiss Pursuant to Rule 4(m), and all opposition thereto, it is hereby ordered that the Motion is GRANTED. All claims against Defendant Correctional Medical Services, Inc. are dismissed without prejudice.

Judge Joseph J. Farnan.

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CERTIFICATE OF SERVICE I, James Drnec, hereby certify that on the 15th day of January 2008, the foregoing Defendant Correctional Medical Services, Inc.'s Motion to Dismiss Pursuant to Rule 4 (m) was filed via CM/ECF and served First Class Mail upon the following:

Michael Kevin Hoffman 5245 Burton St. Apt.2 Philadelphia, PA 19124

/s/ James E. Drnec James E. Drnec, Esquire (#3789)