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Innovative Fabrication, LLC v. ECI Software Solutions, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

October 24, 2019

INNOVATIVE FABRICATION, LLC, Plaintiff,
v.
ECI SOFTWARE SOLUTIONS, INC. d/b/a ECI M1 d/b/a BIRDDOG SOFTWARE CORP., Defendant.

          ORDER

          JANE MAGNUS-STINSON, CHIEF JUDGE

         Plaintiff Innovative Fabrication, LLC (“Innovative Fabrication”) filed this lawsuit against ECI Software Solutions, Inc. d/b/a ECI M1[1] (“ECI Software”) on January 31, 2019. [Filing No. 1.] After several deficient filings, Innovative Fabrication filed its Second Amended Complaint- the operative complaint-on February 5, 2019. [Filing No. 9.] But as of the date of this Order, ECI Software has not been properly served. As a result, on September 9, 2019, ECI Software filed a Motion to Dismiss for insufficient service of process, [Filing No. 18], which is now ripe for the Court's decision.

         I.

         Standard of Review

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(5) seeks dismissal due to insufficient service of process. See Fed.R.Civ.P. 12(b)(5). The plaintiff bears the burden of ensuring service of the summons and complaint within the time allowed by Rule 4(m). Fed.R.Civ.P. 4(c). “To withstand a 12(b)(5) motion, the plaintiff bears the burden of proving the validity of service.” Auld v. Ripco, Ltd., 2016 WL 3615715, at *2 (S.D. Ind. July 6, 2016) (citing Cardenas v. City of Chi., 646 F.3d 1001, 1005 (7th Cir. 2011)). “In determining whether the plaintiff has properly served the defendant, the facts are viewed in a light most favorable to the non-moving party.” Id. And though at least one court has held that “[w]hen the process gives the defendant actual notice of the pendency of the action, the rules, in general, are entitled to a liberal construction, ” Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984), “actual knowledge of the existence of a lawsuit is insufficient to confer personal jurisdiction over a defendant in the absence of valid service of process.” Mid-Continent Wood Prods., Inc. v. Harris, 936 F.2d 297, 301 (7th Cir. 1991).

         II.

         Background

         On January 31, 2019, Innovative Fabrication filed its initial Complaint. [Filing No. 1.] That Complaint was deficient in several ways, [Filing No. 5], and an Amended Complaint was filed on February 4, 2019, [Filing No. 7]. The Amended Complaint was stricken for an incorrect caption and insufficient jurisdictional allegations. [Filing No. 8.] On February 5, 2019, Innovative Fabrication filed a Second Amended Complaint. [Filing No. 9.]

         From there, the filings become more perplexing and convoluted. Though Innovative Fabrication filed its Second Amended Complaint on February 5, 2019 it did not file a proof of service. In fact, no filings were made until June 28, 2019, when the Court issued an Order to Show Cause why this matter should not be dismissed for failure to file a proof of service within the 90 day limit of Rule 4(m). [Filing No. 10.]

         On July 15, 2019, Innovative Fabrication filed both a Third Amended Complaint, [Filing No. 12], and a “Return of Service, ” [Filing No. 11]. The Third Amended Complaint was stricken because Innovative Fabrication failed to seek leave to amend pursuant to Rule 15(a)(2). [Filing No. 14.] Additionally, the Return of Service was stricken as non-compliant.[2] [Filing No. 14.] Again, the Court ordered Innovative Fabrication to show cause why the matter should not be dismissed. [Filing No. 14.]

         On August 9, 2019, Innovative Fabrication filed a “Status Report.” [Filing No. 15.] In its Status Report, Innovative Fabrication asserted that it

ha[d] mailed, via certified mail, return receipt requested, the Summons, along with a copy of the [already stricken] Third Amended Complaint and Exhibits thereto, to ECI Software Solutions, Inc. and ECI M1 to [e]nsure proper service and will file a Return of Service upon receipt of the same with the court.

[Filing No. 15 at 2.] Innovative Fabrication also assured the Court that its counsel and ECI Software's attorneys had discussed the matter and that ECI Software's attorneys agreed to file a responsive pleading on or before August 25, 2019.

         Over the next month, nothing was filed. On September 9, 2019, ECI Software filed its Motion to Dismiss. [Filing No. 18.] On October 7, 2019, Innovative Fabrication filed its response, [Filing No. 20], [3] and ...


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