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Case 1:10-cv-00101-RWS Document 29

Filed 12/02/10 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION PETER KINDER, MISSOURI LIEUTENANT GOVERNOR, et al., Plaintiffs, v. TIMOTHY GEITHNER, SECRETARY OF TREASURY, et al., Defendants. ) ) ) ) ) ) ) ) ) )

Case No.: 1:10 CV 101 RWS

ORDER On November 10, 2010 Plaintiffs filed a Motion to Compel Defendants to Answer [#22] asking me to order the United States Defendants to file an answer in this case. In their motion, Plaintiffs suggested that more than two months had passed since Plaintiffs served the United States Defendants with their Amended Complaint. On November 15, 2010 the United States Defendants filed a Memorandum in Opposition to Plaintiffs’ Motion to Compel [#23] arguing Plaintiffs failed to comply with Federal Rule of Civil Procedure 4(i)(A)(I), which requires service to be made upon the United States Attorney for the district in which the action is brought. On November 15, 2010 I issued a Show Cause Order [#24] to Plaintiffs to show that service had been made upon the United States Attorney for the Eastern District of Missouri. On November 17, 2010 Plaintiffs filed a Response to my Order to Show Cause [#28] and Notice of Filing Proof of Service [#27]. The Proof of Service filed by Plaintiffs indicates that service was not made upon the United States Attorney for the Eastern District of Missouri until after my Show Cause Order. The Plaintiffs’ response indicates that the

Case 1:10-cv-00101-RWS Document 29

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United States Attorney for the Eastern District of Missouri was not served until November 16, 2010. Plaintiffs are now asking me to liberally construe the service requirements of Rule 4 and conclude that the United States Defendants had actual knowledge of this case as evidenced by the United States Defendants Motion in Opposition and, as a result, order the United States Defendants to respond to the Amended Complaint. Of course, Plaintiffs are also asking me to ignore or liberally construe Federal Rule of Civil Procedure 12(a)(2), which gives the United States sixty days to file an answer after service. See Fed.R.Civ.P. 12(a)(2) (“A United States officer...sued in an official capacity must serve an answer to a complaint...within 60 days after service on the United States attorney.”) (emphasis added). Because service was not made upon the United States Attorney for the Eastern District of Missouri until November 16, 2010, Defendants’ Answer is not untimely as argued by Plaintiffs, it is not even due until January 18, 2011. Plaintiffs do not cite any legal authority that would permit me to disregard the express requirements of Rule 12(a)(2) and shorten the amount of time the United States Defendants have to file an answer once the United States Attorney has been served. The Federal Rules of Civil Procedure provide a framework for the fair and orderly adjudication of a case, and I cannot ignore them simply because Plaintiffs ask me to do so. As with any motion, such a request must be supported by relevant legal authority and facts. Because neither has been provided by Plaintiffs to date, the motion will be denied without prejudice and may be renewed if properly presented and briefed. Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ Motion to Compel Defendants to -2-

Case 1:10-cv-00101-RWS Document 29

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Answer [#22] is hereby DENIED without prejudice.

RODNEY W. SIPPEL UNITED STATES DISTRICT JUDGE

Dated this 2nd day of December, 2010.

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