Opinion
CV-23-00167-TUC-CKJ
06-28-2023
Pulte Home Company LLC, Plaintiff, v. Midwest Family Mutual Insurance Company, et al., Defendants.
ORDER
Cindy K. Jorgenson, United States District Judge
The Plaintiff's Complaint (Doc. 1) and First Amended Complaint (Doc. 39) named the wrong Defendant, he Cincinnati Indemnity Company (CSI), a Delaware corporation, instead of the Cincinnati Specialty Underwriters Insurance Company (CSU), a Delaware corporation. The Plaintiff also served the Cincinnati Indemnity Company, the wrong Defendant. Subsequently, CSU filed a motion to quash service or dismiss for lack of proper service. (Doc. 43.) Plaintiff joins in the motion to quash to the extent that it be allowed to amend the case caption to correct the named parties to include CSU, not CSI. Plaintiff has obtained a corrected summons for service on CSU. Plaintiff has not served CSU. See (Joinder (Doc. 73)).
Pursuant to Fed. R. Civ. P.4(m), If a defendant is not served within 90 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 the 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 services for an appropriate period.”
Accordingly, IT IS ORDERED that the Motion to Quash Defective Service of Process or Dismiss (Doc. 43) is GRANTED IN PART as to the defective service on CSU.
IT IS FURTHER ORDERED that the Plaintiff shall be given seven (7) days from the filing date of this Order to serve CSU.
IT IS FURTHER ORDERED that the motion (Doc. 43) is DENIED AS MOOT IN PART as to the request to dismiss CSU from the case.
IT IS FURTHER ORDERED that failure to serve CSU within 7 days and file proof of such service may result in dismissal of the case against CSU; the denial of the request for dismissal that CSU urged in the Motion to Quash, filed by CSU on June 5, 2023, is without prejudice in the event Plaintiff fails to serve CSU within the 7-day time extension.
IT IS FURTHER ORDERED that the Clerk of the Court shall change the case caption to delete CSI and reflect that CSU is the named Defendant in the case.