Opinion
4:99CV3238
June 6, 2000
MEMORANDUM AND ORDER ON DEFENDANT MOTOR INN ASSOCIATES' MOTION TO DISMISS
The defendant Motor Inn Associates moves to dismiss on the ground that it has not been properly served with the complaint in this matter. See filing 12. The plaintiffs concede that the service of process on the defendant was in fact not proper but argues that dismissal is not the proper relief. I agree.
This court has broad discretion over the proper procedure to follow when process has not been served within the proper methods under the Federal Rules of Civil Procedure. Haley v. Simmons, 529 F.2d 79, 80 (8th Cir. 1976). Among the options are dismissal or quashing service but retaining the case so that service may be properly effected. Id.; C L Farms, Inc. v. Federal Crop Ins. Corp., 771 F.2d 407, 409 (8th Cir. 1985). From the evidence, it does not appear that allowing service to be effected properly at this date would prejudice the defendant. The affidavit of the defendant's former corporate officer, Callan M. Cohen, illustrates that he, and, therefore, the defendant, received actual notice of the commencement of this lawsuit within the proper time period for service. In addition, that same affidavit indicates that the former corporate officer, Mr. Cohen, had been in contact with the defendant's local counsel to discuss the complaint and the service thereof within the proper time period. As such, I see no prejudice to the defendant in allowing service at this time. In the interest of justice, then, I should permit the reissuance of service by the plaintiff.
IT IS THEREFORE ORDERED that the defendant Motor Inn Associates' motion to dismiss, filing 12, is denied.
IT IS ALSO ORDERED that the plaintiff's initial service of process on the defendant is quashed, and the plaintiff is afforded until June 25, 2000, to effect proper service of process.