Free Order on Motion to Dismiss/Failure to State Claim - District Court of Delaware - Delaware


File Size: 21.4 kB
Pages: 3
Date: July 19, 2007
File Format: PDF
State: Delaware
Category: District Court of Delaware
Author: unknown
Word Count: 673 Words, 3,991 Characters
Page Size: 622 x 792 pts
URL

https://www.findforms.com/pdf_files/ded/9384/49.pdf

Download Order on Motion to Dismiss/Failure to State Claim - District Court of Delaware ( 21.4 kB)


Preview Order on Motion to Dismiss/Failure to State Claim - District Court of Delaware
Case 1:05-cv—00067-SLB Document 49 Filed 07/19/2007 Page1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
WILLIAM F. DAVIS, lll, )
Plaintiff, g
v. g Civil Action No. 05-067-SLR
RAPHAEL WILLIAMS, FIRST g
CORRECTIONAL MEDICAL, DR. )
BOSTON, BRIAN CASEY, )
C/O DAVIES, CAPTAIN EMMIT, )
C/O REGINALD MAYES, and )
DEBRA MUSCARELl.A, )
Defendants. g
ORDER
At Wilmington this Elf day of July 2007, for the reasons set forth in the
memorandum opinion issued this date;
IT IS HEREBY ORDERED that:
1. Plaintiffs motion to amend (D.l. 26) is granted. Nurse Jeremy and Officer
Fred Way are added as defendants.
2. First Correctional Medical and Debra Muscarella's motion to dismiss (D.l. 25)
is granted as to the claims against First Correctional Medical and the medical
negligence under Delaware law, and denied in all other respects. First Correctional
Medical is dismissed as a party.
3. State defendants' motion for leave to depose plaintiff (D.l. 44) is granted.
IT IS FURTHER ORDERED that:
1. Pursuant to Fed. R. Civ. P. 4(c)(2) and (d)(2), plaintiff shall complete and
return to the clerk of the court an original "U.S. Marshal—285" form for additional

Case 1:05-cv—00067-SLR Document 49 Filed 07/19/2007 Page 2 of 3
defendants Nurse Jeremey and Officer Fred Way. Additionally, plaintiff shall provide
the court with copies ofthe complaint (D.I. 2) and the amended complaints (D.l. 8, 26)
for service upon the additional defendants. Plaintiff is notified that the United States
Marshal will not serve the complaint and amended complaints until all "U.S. Marshal
285" forms have been received by the clerk ofthe court. Failure to provide the "U.S.
Marshal 285" forms and copies of the complaint and amended complaint for the
additional defendants within 120 days from the date of this order may result in the
complaint and/or amended complaint being dismissed or defendants being dismissed
pursuant to Federal Rule of Civil Procedure 4(m).
2. Upon receipt ofthe form(s) required by paragraph 1 above, the United States
Marshal shall forthwith serve a copies ofthe complaint (D.|. 2) and amended complaints
(D.l. 8, 26), this order, a "Notice of Lawsuit" form, the filing fee order(s), and a "Return
of Waiver" form upon the additional defendants identified in the 285 forms.
3. Within thirty (30) days from the date that the "Notice of Lawsuit" and "Return
of Waiver" forms are sent, if an executed "Waiver of Service of Summons" form has not
been received from a defendant, the United States Marshal shall personally sewe said
defendant(s) pursuant to Fed. R. Civ. P. 4(c)(2) and said defendant(s) shall be required
to bear the cost related to such service, unless good cause is shown for failure to sign
and return the waiver.
4. Pursuant to Fed. R. Civ. P. 4(d)(3), a defendant who, before being served with
process timely returns a waiver as requested, is required to answer or otherwise
respond to the complaint within sixty (60) days from the date upon which the complaint,
this order, the "Notice of Lawsuit" form, and the "Return of Waiver" form are sent. If a
2

Case 1:05-cv—00067-SLR Document 49 Filed 07/19/2007 Page 3 of 3
defendant responds by way of a motion, said motion shall be accompanied by a brief or
a memorandum of points and authorities and any supporting affidavits.
5. No communication, including pleadings, briefs, statement of position, etc., will
be considered by the court in this civil action unless the documents reflect proof of
service upon the parties or their counsel.
6. NOTE: *** When an amended complaint is Hled prior to service, the court will
VACATE all previous Service Orders entered, and service will not take place. An
amended complaint Hled prior to service shall be subject to re-screening pursuant to 28
U.S.C. §1915(e)(2) and §1915A(a).***
7. NOTE: *** Discovery motions and motions for appointment of counsel filed
prior to service will be dismissed without prejudice, with leave to rehle following service.

3