Opinion
Civil Action No: 01-3912 SECTION: "J" (1)
October 10, 2002
MINUTE ENTRY
Before the Court is the Motion to Dismiss (Rec. Doc. 7) filed by defendant. Plaintiff has not filed an opposition, and attempts to reach counsel by telephone were unsuccessful because the telephone number supplied in the pleadings and reflected in the docket sheet has been disconnected. The motion, set for hearing on Wednesday, September 25, 2002, is before the Court on briefs without oral argument.
Defendants motion to dismiss is premised on two grounds: (1) failure to effectuate service timely; and (2) insufficiency of service.
With respect to the question of the timeliness of service, the Court granted plaintiff's Motion for Extension of Time for Service, extending the time for service until July 16, 2002. Rec. Doc. 6. Defendant was served and the return filed on July 15, 2002. Rec. Doc. 4. Accordingly, defendant's first argument is without merit.
Defendant alternatively argues that service, which was executed by plaintiff's counsel, was insufficient because Federal Rule 4(b)(2) requires that service be effected by a person who is not a party, and plaintiff's counsel is a "party". However, case law interpreting Rule 4 has uniformly held that plaintiff's counsel is not a "party" for purposes of the rule, and is therefore permitted to effect service under the rule. See, Play by Play Toys Novelties. Inc. v. De Chai Industria e Commercia De Roupas Ltda., 2000 WL 33348787, *3 (W.D. Tex. June 19, 2000); Trustees of Local Union No. 727 Pension Fund v. Perfect Parking, Inc., 126 F.R.D. 48, 51-52 (N.D. Ill. 1989); Jugolinija v. Blue Heaven Mills, Inc., 115 F.R.D. 13, 15 (S.D. Ga. 1986). Therefore, defendant has failed to identify any insufficiency of service, and accordingly;
IT IS ORDERED that defendant's Motion to Dismiss (Rec. Doc. 7) should be and is hereby DENIED;
IT IS FURTHER ORDERED that defendant shall file an Answer within 20 days of entry of this order;
IT IS FURTHER ORDERED that a preliminary conference will be held in chambers on November 21, 2002 at 10:30 A.M.;
IT IS FURTHER ORDERED that plaintiff's counsel shall provide the Court with a current, active telephone number where he may be reached during business hours, within one week of entry of this order.