United States District Court, S.D. New York
July 28, 2004.
JONATHAN HAKALA, Plaintiff,
J.P. MORGAN SECURITIES INC., Defendant.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
The Court's order, dated July 15, 2004, which dismissed the
action for failure to serve within the 120-day time period, is
vacated, as it was issued in the mistaken belief that the period
had expired. The action is reinstated to the active docket.
Plaintiff recently has advised the Court that he "served" the
defendant by mailing a copy of a motion to confirm, etc., to it.
This does not constitute service for at least two, and perhaps
more, reasons. First, the defendant must be served with copies of
the summons, the petition, and the motion, whereas the
affirmation of service recently provided refers only to the
motion and accompanying memorandum. Second, mailing is not an
effective means of serving at least the summons and petition.
See Fed.R.Civ.P. 4(h)(1).
Accordingly, while the action has been reinstated, it will be
dismissed absent the filing, on or before August 12, 2004, of
proof of due and sufficient service.
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