K2M Design, Inc. v. Schmidt Consulting Group, Inc.
- Vyskocil
- 1:22-cv-03069
- U.S. District Court · Southern District of New York
- 2
In K2M Design v. Schmidt Consulting, Judge Vyskocil ordered service by August 25 or threatened dismissal against two defendants.
K2M Design, Inc. was ordered to serve Schmidt Consulting Group, Inc. and Dr. Peter K. Schmidt. The warning of possible dismissal applied to the claims against those two defendants.
What happened
K2M Design, Inc. sued Schmidt Consulting Group, Inc. and others. The court found that no proof of service had been filed for Schmidt Consulting Group and Peter K. Schmidt, although the complaint was filed on April 13, 2022.
The court directed K2M Design to serve those two defendants and file proof of service by August 25, 2022. The court also stated that the complaint would be dismissed against them if service was not completed and K2M Design did not explain in writing why service had not been made.
Judge Mary Kay Vyskocil issued the August 18, 2022 order under the federal rules governing service and prosecution of cases. The order did not itself dismiss the complaint; it set a deadline and warned of possible dismissal.
The detailed version
- K2M Design, Inc. v. Schmidt Consulting Group, Inc. · No. 1:22-cv-03069
- Vyskocil
- Aug. 18, 2022
Background
K2M Design, Inc. filed the complaint on April 13, 2022. The court reviewed its records and found that no proof of service had been filed for Defendants Schmidt Consulting Group, Inc. and Dr. Peter K. Schmidt.
Rule and Analysis
Federal Rule of Civil Procedure 4(m) generally requires service within 90 days after a complaint is filed. If service is not completed, the court may dismiss the action against the unserved defendant or order service by a specified deadline. If the plaintiff shows good cause for the failure, the court must extend the service period for an appropriate time. The court also noted that filing an amended complaint does not restart the 90-day service period for defendants named in the original complaint.
Order
The court directed K2M Design to serve Schmidt Consulting Group, Inc. and Dr. Peter K. Schmidt and file proof of service on the docket by August 25, 2022. The court stated that, if service was not completed by that date and K2M Design failed to show in writing why service had not been made, the complaint would be dismissed as against those two defendants for failure to prosecute under Rules 4 and 41. The order itself did not dismiss the complaint.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.