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

Case 1:04-cv-00944-JJF

Document 11

Filed 04/26/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ROBERT T. FLOYD, Plaintiff, v. GENERAL MOTORS ACCEPTANCE CORPORATION and SATURN OF NEWARK, Defendants. : : : : : : : : : : :

C.A. No. 04-944 (JJF)

MOTION TO DISMISS Pursuant to Federal Rule of Civil Procedure 12(b), defendant Saturn of Newark ("SN") by and through its undersigned counsel, hereby moves to dismiss the Complaint against it for lack of subject matter jurisdiction due to lack of diversity jurisdiction or failure to plead a federal question, lack of personal jurisdiction due to a failure to properly serve the defendant within 120 days, insufficiency of service of process, and insufficient service of process. In support of its Motion to Dismiss, Defendant SN states the following: 1. On or about August 16, 2004, Robert Floyd filed a complaint in this Court

seeking damages for an alleged breach of contract and fair trade practice when attempting to purchase a new car. (D.I. 1). 2. On or about August 16, 2004, a summons was issued for service of process

upon SN. (D.I. 2). Service has not been made properly on SN, furthermore, plaintiff has failed to file any type of proof of service with this Court as required by Rule 4(l). 3. Plaintiff was required to perfect service within 120 days of filing the

Case 1:04-cv-00944-JJF

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complaint, under Rule 4(m). As service has not been perfected, this Court lacks jurisdiction over defendant SN. 4. Defendant SN is not a legal extant entity, but is a trade name operating under

another business entity. 5. The complaint lacks diversity of jurisdiction basis, as the amount in

controversy does not meet or exceed the 28 U.S.C. § 1332 requirement of $75,000, nor has a federal claim been alleged as required to obtain jurisdiction under 28 U.S.C. § 1331. 6. For the reasons more fully developed and set forth in defendant SN's

accompanying Brief in support of its Motion to Dismiss, which is incorporated herein by reference, SN is entitled to have the case dismissed against it for lack of personal jurisdiction due to improper service of process and insufficiency of service of process and lack of subject matter jurisdiction. WHEREFORE, for the reasons set forth herein and in the accompanying Brief, the defendant Saturn of Newark hereby move this honorable Court to grant its Motion to Dismiss in its favor. TYBOUT, REDFEARN & PELL

____________________________ DANIELLE K. YEARICK, I.D. # 3668 TIMOTHY S. MARTIN, I.D. # 4578 300 Delaware Avenue, 11th Floor P.O. Box. 2092 Wilmington, DE 19899-2092 (302) 658-6901 Attorneys for Defendant Saturn of Newark Dated: April ____, 2005

Case 1:04-cv-00944-JJF

Document 11

Filed 04/26/2005

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