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Grande v. Anderson

August 29, 2006

QUENTIN LA GRANDE, PLAINTIFF,
v.
KEVIN ANDERSON, VIC PETEANI, AND HANNAFORD BROTHERS, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge

DECISION AND ORDER

I. Introduction

Pending is defendants' motion to dismiss. See Dkt. No. 8.*fn1 For the reasons that follow, the motion is granted.

II. Procedural History

On August 30, 2004, La Grande filed a Title VII race discrimination action against Hannaford Brothers, as well as Hannaford Brothers employees, Kevin Anderson (personnel director) and Vic Peteani (district manager). See Compl., Dkt. No. 1.*fn2 That same day, La Grande filed an in forma pauperis application. On December 13, 2005, La Grande's IFP application was granted. See Dkt. No. 3.

On December 12, 2005, La Grande filed a motion for permission to file a dual amended complaint in state court. See Dkt. No. 5. In this motion, La Grande acknowledged that he cannot pursue his claims against the named individual employees under Title VII and therefore requested permission to file separate claims in state court. See id.

On March 27, 2006, in lieu of an answer, defendants filed a motion to dismiss. See Dkt. No. 8.*fn3 On March 29, the defendants also submitted a letter to the court requesting more time to respond to La Grande's motion to file a dual amended complaint in state court because they were not served with either the summons and complaint, or the motion itself, until March 9. See Dkt. No. 10. Judge Treece granted this request and gave the defendants additional time to respond. See Dkt. No. 13. Subsequently, defendants requested a conference before Judge Treece to discuss La Grande's motion to pursue claims in state court, andJudge Treece denied this request. See Dkt. No 14; Text Order 4/27/06.

Defendants' motion to dismiss was set for May 4. See Text Order 4/13/06. La Grande did not file a response and, therefore, the defendants requested an adjournment of the motion and additional time to reply. See Dkt. No. 17. In lieu of responding, La Grande requested that the court grant him a sixty day stay so that he could obtain an attorney. See Dkt. No. 19. On April 28, this court granted La Grande's request for a sixty day stay. See Dkt. 20.

After the passage of sixty days, La Grande did not file a response to defendants' motion to dismiss or obtain representation. On June 30, this court issued an order which required La Grande to either respond to the motion or notify the court and opposing counsel of his intention not to respond, within fourteen days. See Dkt. No. 21. La Grande failed to respond.

The motion hearing was reset for August 3. See Text Notice 7/20/06. On July 24, the court received a letter from La Grande requesting an additional 30 day adjournment, and requesting that the defendants respond to his motion to file a dual amended complaint. See Dkt. No. 22. The defendants opposed the request for an adjournment. See Dkt. No. 23. On August 8, La Grande submitted an additional letter to the court reiterating his requests. See Dkt. No. 24. The defendants' motion to dismiss, and La Grande's request for an extension of time and his motion to file a dual amended complaint are now pending.

III. Discussion

A. Service of Process

Defendants contend that La Grande's action should be dismissed because he did not complete service within the 120 day time frame required under Federal Rule of Civil Procedure 4(m). Rule 4(m) provides:

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court...shall dismiss the action...as to that defendant or direct that service be effected within a specified time; provided that the plaintiff show good cause for the ...


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