Opinion
No. 3:05 CV 649JM.
June 19, 2006
OPINION and ORDER
Defendant Penn-Harris-Madison School Corporation ("PHM") moves to dismiss this action pursuant to FED. R. CIV. P. 12(b)(5) and FED. R. CIV. P. 4(m) because of plaintiff's failure to effect timely service of the summons and complaint. FED. R. CIV. P. 4(m) provides:
Time Limit for Service. If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
The complaint initiating this action was filed on October 14, 2005. PHM appeared and filed its motion on March 20, 2006, 157 days after the complaint was filed. PHM alleges that it never was served with the summons and the complaint. As of the date of this order, plaintiff has not responded to the motion.
On the record PHM's assertion that it was not served with the summons and complaint within 120 days as required by RULE 4(m) stands without contradiction. Accordingly, PHM's motion to dismiss pursuant to RULE 12(b)(5) (DE # 3) is GRANTED, and this action is DISMISSED WITHOUT PREJUDICE.
SO ORDERED.