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

Case 1:07-cv-00239-JJF

Document 57

Filed 03/13/2008

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : Plaintiff, : : v. : : WARDEN RAPHAEL WILLIAMS, : LT. SHEETS, JIM WELCH, : and DR. BINNON : : Defendants. : RICHARD E. CLARK, JR.,

C.A. No. 07-239 JJF

DEFENDANT DR. BINNON'S MOTION TO DISMISS PURSUANT TO RULE 4 (m)1 Defendant Dr. Binnon ("Movant") hereby moves for entry of an order in the form attached hereto dismissing the Plaintiff's claims against him for failure timely to serve process. In support of this Motion, Movant states as follows: 1. On May 2, 2007 Plaintiff filed his Complaint alleging civil rights violations

against Raphael Williams, Lt. Sheets, and Mr. Smith. (D.I. 2) Movant was not a named defendant. (Id.) On June 25 Plaintiff filed his Amended Complaint which added as defendants Dr. McDonald and Jim Welch and dismissing Raphael Williams. (D.I. 8) The Amended Complaint did not name Movant, either. (Id.) On July 31 Plaintiff filed his Second Amended Complaint, this time adding Dr. Binnon as a defendant. (D.I. 11) 2. The Docket reflects that the USM 285 form for Movant exited to the U.S.

Marshall's Service on November 19, 2007.

Movant 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 him, intend to waive any defense available to him.

1

Case 1:07-cv-00239-JJF

Document 57

Filed 03/13/2008

Page 2 of 2

3.

As of the date of this Motion, Movant still has not been served. 187 days have

passed since Plaintiff filed his Second Amended Complaint. 4. 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). 5. Pursuant to Fed.R.Civ.P. 4(m), the Plaintiff's claims against Movant should be

dismissed.

WHEREFORE, for the foregoing reasons, defendant Dr. Binnon respectfully requests entry of the order attached hereto dismissing all claims against him

BALICK & BALICK, LLC

/s/ James E. Drnec James E. Drnec, Esquire (#3789) 711 King Street Wilmington, Delaware 19801 302.658.4265 Attorneys for Defendant Dr. Binnon Date: March 13, 2008

Case 1:07-cv-00239-JJF

Document 57-2

Filed 03/13/2008

Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE RICHARD E. CLARK, JR., : : Plaintiff, : : v. : : WARDEN RAPHAEL WILLIAMS, : LT. SHEETS, JIM WELCH, : and DR. BINNON : : Defendants. :

C.A. No. 07-239 JJF

ORDER

AND NOW, this

day of

, 2008, this Court having considered

Defendant Dr. Binnon'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 Dr. Binnon are dismissed.

Judge Joseph J. Farnan.

Case 1:07-cv-00239-JJF

Document 57-3

Filed 03/13/2008

Page 1 of 1

CERTIFICATE OF SERVICE I, James Drnec, hereby certify that on the 13th day of March 2008, the foregoing Motion to Dismiss Pursuant to Rule 4 (m) was filed via CM/ECF and served upon the following via the manner indicated:

FIRST CLASS MAIL Richard E. Clark Jr. SBI# 477726 Howard R. Young Correctional Institution P.O. Box 9561 Wilmington, DE 19809 CM/ECF FILING Erika Yvonne Tross, Esquire Department of Justice 820 N. French Street, 8th Floor Carvel Office Building Wilmington, DE 19801

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