Free Motion to Dismiss - District Court of Connecticut - Connecticut

Case 3:03-cv-00651-MRK

Document 26

Filed 10/29/2004

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

WILLIAM E. McCARTY PLAINTIFF V. DERIVIUM CAPITAL, LLC, et al. DEFENDANT

: : : : : : : : :

CIVIL ACTION NO. 3:03cv651 (MRK)

OCTOBER 29, 2004

MOTION TO DISMISS Pursuant to Fed. R. of Civ. P., Rules 4(m), and Rule 12(b)(5), Defendant, Derivium, LLC ("Derivium") hereby moves to dismiss Plaintiff's action for failure to serve the Summons within the time required. Pursuant to Fed. R. Civ. P., Rule 4(c), Plaintiff was required to serve the Summons on Derivium within 120 days after filing the Complaint. As set forth in the Affidavit of Charles Cathcart, the founder and managing member of Derivium, Derivium was never served with a summons in this case. See Affidavit of Charles Cathcart, ¶¶ 7 & 8. Pursuant to Fed. R. of Civ. P. Rule 4(m), where, as here, service has not been made within the 120 day time limit, the Court, upon motion, is authorized to dismiss the action (without prejudice) or, in the alternative, order service within an extended time period.

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Case 3:03-cv-00651-MRK

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Based on the foregoing, it is respectfully submitted that this matter should be dismissed as to Derivium.

DEFENDANT, DERIVIUM CAPITAL, LLC

By:________s/Kenneth Rosenthal____ Kenneth Rosenthal (ct 05944) BRENNER, SALTZMAN & WALLMAN LLP Its Attorneys 271 Whitney Avenue New Haven, CT 06507-1746 Juris No. 06063 Tel. (203) 772-2600 Fax (203) 772-4008

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Case 3:03-cv-00651-MRK

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Filed 10/29/2004

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CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing was served by U.S. Mail this 29th day of October, 2004 upon:

William E. McCarty 113 Grove Place West Haven, CT 06516 s/Kenneth Rosenthal_____ Kenneth Rosenthal (ct 05944)

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