Metcalf et al v. Watkins et al, No. 5:2011cv00336 - Document 26 (E.D. Ky. 2012)
Court Description: MEMORANDUM OPINION & ORDER re 23 MOTION for Clarification is GRANTED IN PART AND DENIED IN PART; State Farm, an intervening party, shall have 10 days to serve Dfts with the Intervening Complaint. Signed by Judge Joseph M. Hood on 10/17/2012. (KLB) cc: COR
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON KIMBERLY METCALF, ) ) ) Action No. 5:11-CV-336-JMH ) ) ) ) MEMORANDUM OPINION AND ORDER ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Intervening Plaintiff, V. REYNOLDS W. WATKIS, WASHINGTON TRUCKING FLEET, And JOHN DOES 1 THRU 5 Defendants. ** This matter Intervening is ** ** before Plaintiff ** the Court State Farm ** on Motion Mutual of the Automobile Insurance Company ( State Farm ) for Clarification of the Status of Defendants Intervening Washington Complaint Trucking Fleet [Record No. and Reynolds 23]. W. Watkins timely responded [Record No. 24], and State Farm replied [Record No. 25]. This matter is now ripe for this Court s review. While this matter was pending in the Scott Circuit Court, but before Plaintiff Kimberly Metcalf had properly 1 served Farm Defendants filed complaint. a with the motion for summons leave to and complaint, file an State intervening State Farm mailed the motion to the Defendants address. The Scott Circuit Court allowed State Farm to intervene and, before the because Scott Defendants Circuit Court, were not directed yet properly summons to be issued so that State Farm could serve Defendants with the Intervening Complaint under Rule 5. September 15, 2011. However, Summons was issued on before State Farm served Defendants, Plaintiff properly served Defendants with the plaintiff s initial complaint on September 19, 2011. Thus, Defendants were served and brought before the Scott Circuit Court before State Farm effectuated service of the summons and Intervening Complaint under Rule 4. Defendants timely filed an answer on October 11, 2011 and removed this matter to federal court on October 19, 2011. State Farm did not, however, serve Defendants with a copy of the Intervening Complaint after the Scott Circuit Court allowed State Farm to intervene. Nonetheless, Defendants had actual knowledge of the order allowing State Farm s intervention and the Intervening Complaint, as they filed these documents in this Court when the matter was removed. State Farm has also participated in this action for the last year, and attended the parties joint planning 2 meeting. [Record No. 13] Defendants do not argue that they have been prejudiced by the delay in service. State Defendants Defendants Complaint Farm argues inured to should and be that Plaintiff s State deemed required Farm s service benefit served answer to with within of and the the that Intervening twenty days. Defendants argue that because the Intervening Complaint was not served, State Farm did not properly intervene and State Farm must request leave from this court to intervene in the present action anew. This Court is not persuaded by either argument. Defendants do not challenge the Scott Circuit Court s Order permitting State Farm to intervene. Thus, State Farm s status as an intervening party is settled. The only issue is that of service of the Intervening Complaint. Once a party is before the court, as Defendants were on September 19, 2011, [a]n intervening party need not serve process in process in Rule 4. the manner provided for original Allgeier v. United States, 909 F.2d 869, 875 (6th Cir. 1990). Service under Rule 5 is proper. See 7C Wright, Miller & Kane, Federal Practice & Procedure ยง 1919 (3d ed. 2012). Service should have been made long before now, however, under the circumstances of this case, no prejudice has been demonstrated. 3 Accordingly, State Farm may remedy its failure to serve the Defendants by serving the intervening complaint in accordance with Fed. R. Civ. P. 5(b)(1). IT IS ORDERED that the relief requested in State Farm s Motion to Clarify [Record No. 23] is GRANTED IN PART AND DENIED IN PART. State Farm, an intervening party, shall have ten days from the entry of this Order in which to serve Defendants with the Intervening Complaint. This the 17th day of October, 2012. 4
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