Free Motion to Dismiss - District Court of Connecticut - Connecticut

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UNITED STATES DISTRICT COURT Q iinlmfg
DISTRICT OF CONNECTICUT I
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DIRECTV, INC. ) "Mf?. W
Plaintiff, ) §
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SEAN RICHARDSON )
Defendant. )
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DEFENDANT’S MOTION TO DISMISS *
Instead of filing an Answer, Defendant hereby files this
Mbtion to Dismiss:
Pursuant to Federal Rules of Civil Procedure, Rule l2(b}(5),
Defendant hereby moves to dismiss Plaintiff’s Complaint for
“insufficiency of service of process" because Plaintiff failed to `
serve the Complaint upon Defendant within “l20 days after the l
filing Of the cOmplaint,” as required by Federal Rule of Civil n i
Procedure, Rule 4(m). In support of this Motion, Defendant says
that: I
H
l. Although Plaintiff filed the complaint on May 27, 2003, i
Plaintiff did not serve the Complaint upon Defendant until i
September 26, 2003, which was 122 days after the filing of l
the complaint. i
2. Plaintiff cannot show “good cause" for its failure to comply
with Rule 4(m) because:
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Case 3:03-cv-OOQSQOPH Document5 F|Ied10/20/6093 Page2of3 I
A. “Good cause" is a “stringent standard requiring
diligen[t] albeit unsuccessful effort to complete
service within the period prescribed by the Rule.” I
Davis—Wilson v. Hilton Hotels Corp., 106 F.R.D. 505, I
509 (E.D.La. 1985). I
B. Indeed, “the ggly example of good cause provided by the
legislative history [of Rule 4(m)] is the obvious one
of defendant's evasion of service.” Wei v. State, 763
F.2d 370, 371 (9th Cir. 1985) (emphasis added). I
C. Because Defendant did not, in any way, evade — or I
attempt to evade — service of process, Plaintiff will
simply not be able to establish that it made diligent
effort to effect service within 120 days.
WHEREFORE, Defendant respectfully requests that this Motion
be ALLOWED.
Respectfully submitted, I
5., 2 @{%.Js¤¤~
Sean Richardson, Egg Qe !
281 C—3 Gardner Avenue I
New London, CT 06320
(860) 625-2767
Dated: October 16, 2003 I
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~ ‘t *· Case 3:03-cv-0093?;JwCH Document5 Filed 10/20/2003 Page3of3
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CERTIFICATE OF SERVICE
I hereby certify that a true copy of the above document was
served by mail on October 16, 2003 upon: l
John M. McLaughlin
McLaughlin Sacks, LLC
31 Trumbull Road
Northampton, MA 01060 ,
Sean Richardson

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