Willard v. Park Industries

• Court: District Court, D. New Hampshire
• Decided: December 18, 1997
• Docket: CV-97-581-M
• Status: Published

Opinion

Willard v . Park Industries CV-97-581-M 12/18/97 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Timothy Willard

v. Civil N o . 97-581-M

Park Industries, Inc.

O R D E R

Defendant moves to dismiss on grounds that the removed state

writ is not properly indorsed (RSA 509:8) and service of process

under New Hampshire’s long-arm statute was defective (RSA 510:4).

Plaintiff counters by pointing out that the absence of

indorsement was mere oversight, and that he moved in state court

to amend the writ to add counsel’s indorsement. That motion was

not ruled on due to the case’s removal to this court. This

court, sua sponte, grants the motion to amend writ as if it had

been filed in this court in compliance with applicable local

rules. See Garvins v . Legery, 61 N.H. 153 (1881). Accordingly,

the writ is deemed properly indorsed, nunc pro tunc.

As for defendant’s improper service of process claim, plaintiff shall, on or before January 1 6 , 1998, file a complaint

in federal form and, if defendant will not promptly waive any

claimed defects in service, shall serve the complaint in

accordance with applicable Federal Rules of Civil Procedure (See

e.g. Rule 4(d)(2) and ( 5 ) .

Costs and fees will be imposed as provided by rule for

unreasonable failure to waive service. Motion to dismiss (document n o . 3 ) is denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge

December 1 8 , 1997

cc: Robert I . Morgan, Esq. Charles P. Bauer, Esq.