Mrs. Fields' Original Cookies v. Pretzels of Volusia

Full title: MRS. FIELDS' ORIGINAL COOKIES, INC., PTF, LLC, Plaintiffs, v. PRETZELS OF…

Court: United States District Court, M.D. Florida, Orlando Division

Date published: Sep 11, 2008

Case No. 6:08-cv-692-Orl-28KRS (M.D. Fla. Sep. 11, 2008)

Opinion

Case No. 6:08-cv-692-Orl-28KRS.

September 11, 2008

ORDER

KARLA SPAULDING, Magistrate Judge

This cause came on for consideration without oral argument on the following motion: MOTION: RESPONSE OF PLAINTIFFS TO THE COURT'S SUPPLEMENTAL BRIEFING ORDER AND MOTION FOR ISSUANCE OF ALIAS SUMMONS (Doc. No. 13) FILED: September 10, 2008 THEREON ORDERED GRANTED.

it is that the motion is On August 25, 2008, this Court issued an Order for Supplement Briefing, Doc. No. 12, concerning an apparent defect in the service of the Summons and Complaint on Defendant, Pretzels of Volusia, Inc. Plaintiffs Mrs. Fields' Original Cookies, Inc. and PTF, LLC ("Mrs. Fields'") now make the instant motion for issuance of a new summons to cure a defect in the manner of service, pursuant to Fed.R.Civ.P. 4(a)(2). See, e.g., Cambridge Mut. Fire Ins. Co. v. City of Claxton, 96 F.R.D. 175, 178 (S.D. Ga. 1982).

The period for service of process has now expired. See Doc. No. 1 (complaint filed Apr. 29, 2008); Fed.R.Civ.P. 4(m) (permitting 120 days to serve complaint). However, Mrs. Fields' has demonstrated a reasonable effort to serve process and shown good cause for the failure to comply. Defendant was most likely not prejudiced by the technical defect in service, see, e.g., Cambridge, 96 F.R.D. at 178, and has not appeared to contest the defective service. Accordingly, Mrs. Fields' would be permitted to amend its summons, Fed.R.Civ.P. 4(a)(2), and "the court must extend the time for service for an appropriate period." Fed.R.Civ.P. 4(m).

It is hereby ORDERED that the Clerk of the Court shall issue an alias summons as to Defendant Pretzels of Volusia, Inc., in this case. It is further ORDERED that Mrs. Fields' shall have thirty days from the date of this Order to serve the amended summons together with a copy of the complaint on Defendant Pretzels of Volusia, Inc., and file proof of such service with the Court.

Accordingly, Mrs. Fields' Motion for Default Judgment, for Award of Attorneys' Fees and Costs, Doc. No. 9, and Supplemental Motion and Memorandum In Support of Default Judgment, Doc. No. 11, are DENIED without prejudice.

DONE and ORDERED in Orlando, Florida.