Free Motion for Leave to File - District Court of Delaware - Delaware

Case 1 :04-cv-01331-JJF Document 14 Filed O3/08/2005 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MATY SENE, )
Plaintiff, g
v. 3 C.A. N0. 04—l33l JJF
MBNA AMERICA, INC., i
Defendant. i
MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF
IN RESPONSE TO PLAINTIFF’S FAILURE TO COMPLY WITH FED.R.CIV.P. 4gml
Defendant MBNA America, Inc. hereby moves, pursuant to Local Rule 7.l.2(c), for
leave to submit an eight—page supplemental brief in support of its motion to dismiss the complaint
and states as follows:
l. Defendant requests to submit the supplemental brief because following the
completion of briefing by the parties on its motion to dismiss the 120 day time period under Fed. R.
Civ. P. 4(m) expired without Plaintiff effecting service of process.
2. Rule 4(m) specifically provides that "[I]f service ofthe summons and
complaint is not made upon a defendant within 120 days after the filing ofthe complaint, the court,
upon motion or on its own initiative after notice to the plaintiff shall dismiss the action . . . or direct
that service be effected within a specified time, provided that if the plaintiff shows good cause for the
failure, the court shall extend the time for service for an appropriate period." Fed.R.Civ.P. 4(m).
3. In the instant case, Plaintiff commenced this action on October 5, 2004 and
had until February 3, 2005 to effect service under Rule 4(m). However, Plaintiff did not attempt to
seiye Defendant with a valid summons until Febmary 8, 2005, one hundred twenty tive (l25) days
after the Complaint was filed.
wiayiosssszti 009626.104l

Case 1:04-cv-01331-JJF Document 14 Filed O3/08/2005 Page 2 of 3
4. As set forth more fully in Defendant°s supplemental brief Plaintiff s failure
to effect sewice of process within the time prescribed under Rule 4(m) warrants dismissal of this
case. Plaintiff cannot show good cause why service ofthe Summons and Complaint was not
accomplished within 120 days, and numerous factors weigh against this Court’s exercise of
discretion to extend the time to effect service.
WHEREFORE, Defendant respectfully requests that this Court grant its motion to tile the
eight-page supplemental brief submitted herewith.
Respectfully subm
Scott A. Holt (Del. No. 3399)
YOUNG, CONAWAY, STARGATT & TAYLOR, LLP
The Brandywine Building
1000 West Street, 17m Floor
P.O. Box 391
Wilmington, DE 19899-0391
(302) 571-6623
[email protected]
Attorneys for Defendant
l DATED: March 8, 2005
WP3;10866821 0096261041

Case 1:04-cv-01331-JJF Document 14 Filed O3/08/2005 Page 3 of 3
CERTIFICATE OF SERVICE
1 hereby certify that on March 8, 2005, I electronically tiled a true and correct copy of
A Motion For Leave To File Supplemental Brief In Response To Plaintiffs Failure To
Comply With Fed. R. Civ. P. 4(m) and Order with the Clerk of the Court using CM/ECF,
which will send notification that such tiling is available for viewing and downloading to the
following counsel of record:
Tshaka H. Lafayette, Esquire Kester I. H. Crosse, Esquire
Lafayette Chisholm Talmadege & Jackson, P.C. Williams & Crosse
The Stephen Girard Building 1214 King Street, Suite 300
21 South 12th Street Wilmington, DE 19801
Suite 1050
Philadelphia, PA 19107
I further certify that on March 8, I caused a copy of Motion For Leave To File
Supplemental Brief In Response To Plaintiff’s Failure To Comply With Fed. R. Civ. P.
4(m) and Order to be served on the following counsel of record:
Tshaka H. Lafayette, Esquire Kester I. H. Crosse, Esquire
Lafayette Chisholm Talrnadege & Jackson, P.C. Williams & Crosse
The Stephen Girard Building 1214 King Street, Suite 300
21 South 12th Street- Suite 1050 Wilmington, DE 19801
Philadelphia, PA 19107
BY UNITED STATES FIRST CLASS MAIL BY HAND DELIVERY
YOUNG CONAWAY ST? GATT & TAYLOR, LLP
Scott A. Holt, Esquire (Del. No. 3399)
The Brandywine Building
1000 West Street, 17th Floor, P.O. Box 391
Wilmington, Delaware 19899-0391
(302) 571-6623
[email protected]
Attorneys for Defendant
DATED: March 8, 2005
WP3:l09l561.1 0096261039