Opinion
Civil Action No. 09-cv-03008-WYD-BNB.
December 9, 2010
ORDER
This matter arises on The Bank of New York's Motion to Dismiss [Doc. # 18, filed 3/18/2010] which seeks dismissal of the action for insufficiency of service of process. Service does not appear to have been perfected. However, the plaintiff has been granted leave to proceed in forma pauperis and has requested that service of process be made by the United States Marshal. Response [Doc. # 21, filed 3/30/2010] at ¶ 13.
I am prepared to direct the Marshal to make service. Pursuant to such an order, the Marshal would send to the defendant a request for waiver of service pursuant to Fed.R.Civ.P. 4(d). If the defendant refused to waive service pursuant to Rule 4(d), the Marshal would perfect personal service against the defendant's agent for service of process.
At a status conference held this morning, I inquired of defense counsel if the defendant would be willing to waive service so that the resources of the Marshal might be put to better use. Defense counsel indicated that she would require the consent of her client to waive service and requested time sufficient to make such an inquiry.
Consistent with the matters discussed at the status conference:
IT IS ORDERED that the defendant shall file a status report on or before December 21, 2010, reporting on whether the defendant will waive service of process, withdraw its Motion to Dismiss based on insufficient service of process, and respond to the Complaint on its merits within ten days of filing the status report.
Dated December 9, 2010.