United States District Court, Southern District of New York
May 22, 2003
AGATHA BROWN, PLAINTIFF, AGAINST MICHEL QUINIOU, AGATHA DIFFUSION, S.R.L. SIXTEEN, INC. AND FROSS ZELLNICK LEHRMAN & ZISSU P.C., DEFENDANTS.
The opinion of the court was delivered by: Constance Motley, Senior District Judge.
MEMORANDUM OPINION AND ORDER
By Order dated April 22, 2003, this court addressed the confusion surrounding the status of a Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(5) for Insufficient Service of Process brought by Defendant Agatha Diffusion, S.R.L. ("Diffusion"). As the court explained, having initially consented to the granting of the Motion, plaintiff later objected on the basis of unspecified "further research." Id. at 1. Since another defendant, Michel Quiniou ("Quiniou") had recently expressed his intent to file his own motion to dismiss for untimely service, the court set a schedule for the briefing of the two motions, thereby providing "plaintiff the opportunity to file a formal memorandum of law in opposition" to both motions. Id.
Defendant Quiniou filed his Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(5) for Plaintiff's Failure to Timely Service [sic] Process pursuant to the court's April 22, 2003 Order. Plaintiff, however, did not file a formal memorandum of law, but rather a two page Declaration of Carlos M. Carvajal in Opposition with no clarification of the "further research" upon which plaintiff's newfound opposition to the Motion was based.
In light of plaintiff's initial consent to the granting of Diffusion's Motion and instant failure to file an actual memorandum in opposition, as well as the obvious merit of the Motions, the court now grants Diffusion's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(5) for Insufficient Service of Process and Quiniou's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(5) for Plaintiff's Failure to Timely Service [sic] Process. Both Motions are granted without prejudice.
In light of this Order, the pre-trial conference scheduled for Tuesday, May 27, 2003 is hereby rescheduled for Monday, June 23, 2003 at 11:00 a.m.
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