Opinion
CAUSE NO. 1: 07 CV 335.
August 4, 2008
OPINION and ORDER
This matter is before the Court on the pro se Plaintiff's Motion for Extension of Time for Service of Claim (DE# 17) filed April 16, 2008. In the motion, the Plaintiff requests additional time to serve the Defendant because "there is a question of improper service and the defendant's proper name."
We note, however, that the Defendant filed an Answer on April 17, 2008, and did not raise the issue there or in the motion to dismiss filed the same day; consequently, any issue the Defendant may have had concerning proper service or insufficient process has been waived under Fed.R.Civ.P. 12(h)(1)(B), making the present motion moot.
As far as the Defendant's proper name is concerned, the Defendant in its Answer does not challenge that it, as International Truck and Engine Corporation, employed the Plaintiff, and only observes that its true name is "Navistar, Inc." Presumably this misnomer, if that is what it is, can be cured if necessary by a motion under Fed.R.Civ.P. 21, dropping one in favor of the other. Perhaps the question will become clearer once the Defendant files its overdue disclosure statement under Fed.R.Civ.P. 7.1.
Consequently, the Plaintiff's Motion is denied as moot. The Defendant is to file a disclosure statement on or before August 12, 2008.