Summary
granting leave to amend instead of dismissal based on incorrect name
Summary of this case from Von Rosenberg v. LawrenceOpinion
CIVIL CASE NO. 1:09cv327.
January 6, 2010
ORDER
THIS MATTER is before the Court on the "Defendants Walmart DC 6070, Walmart Stores, Inc., Jerry Pendleton, and Bob Apple's Special Appearance Motion to Dismiss for Improper Service and/or to Quash Service" [Doc. 12].
Pursuant to 28 U.S.C. § 636(b) and the standing Orders of Designation of this Court, United States Magistrate Judge Dennis L. Howell was designated to consider this Motion and to submit recommendations for its disposition.
On November 30, 2009, the Magistrate Judge filed a Memorandum and Recommendation [Doc. 14] in which he recommended that the motion to dismiss for improper service be allowed and that all named Defendants be dismissed from the action. He also recommended that Wal-Mart Stores East, L.P. be substituted as the proper party defendant and that service be accomplished on that Defendant by the United States Marshal. The parties were advised that any objections to the Magistrate Judge's conclusions and recommendations were to be filed in writing within ten days of service of the Recommendation and that failure to file objections to the Memorandum and Recommendation would preclude the parties from raising any objection on appeal. [Doc. 14, at 5]. The period within which to file objections expired on December 17, 2009 and no objections to the Memorandum and Recommendation have been filed.
The Court concludes that the Magistrate Judge's recommendation is supported by the record and the law. Accordingly, the Court hereby accepts the Magistrate Judge's Recommendation. The caption of the case has been amended to reflect Wal-Mart Stores East, L.P. as the proper party defendant.
IT IS, THEREFORE, ORDERED that the Defendants Walmart DC 6070, Walmart Stores, Inc., Jerry Pendleton, and Bob Apple's Special Appearance Motion to Dismiss for Improper Service and/or to Quash Service [Doc. 12] is hereby GRANTED and these Defendants are hereby dismissed from the action.
IT IS FURTHER ORDERED that Defendants Walter Mooneyham, General Manager Ron LNU and Ron LNU are hereby dismissed from the action for the reasons stated in the Motion to Dismiss for Improper Service and/or to Quash Service [Doc. 12] and the Memorandum and Recommendation.
IT IS FURTHER ORDERED that Wal-Mart Stores East, L.P. is hereby substituted as the proper party defendant and the caption of the case is hereby amended as reflected herein above.
IT IS FURTHER ORDERED that the Clerk of Court shall issue a summons to Wal-Mart Stores East, L.P. and the United States Marshal shall serve the summons and complaint on Wal-Mart Stores East, L.P. through service on its registered agent, CT Corporation System, 225 Hillsborough Street, Raleigh, N.C. 27603.