UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
August 19, 2007
FLUID RX, INC., A DELAWARE CORPORATION, PLAINTIFF,
GARY W. ROY, AN INDIVIDUAL, GARY W. ROY, DOING BUSINESS AS GWR [DKT. NOS. 33, 34] SPECIALTY AUTOMOTIVE PRODUCTS; ALDOSOFT ENGINEERING, A COMPANY OF UNKNOWN ORIGIN, DEFENDANTS.
GARY W. ROY, AN INDIVIDUAL, AND GARY W. ROY, DOING BUSINESS AS GWR SPECIALTY AUTOMOTIVE PRODUCTS, COUNTER-CLAIMANTS,
FLUID R. INC., A DELAWARE CORPORATION; RON SCHORNSTEIN, AN INDIVIDUAL; AND RON MCELROY, AN INDIVIDUAL, COUNTER-DEFENDANTS.
The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER DENYING COUNTER-DEFENDANTS' MOTION TO DISMISS COUNTERCLAIM
On October 13, 2006, Defendant Gary Roy ("Roy") filed a counterclaim against Plaintiff FluidRx and two of its principals, Ron Schornstein ("Schornstein") and Ron McElroy ("McElroy"). Schornstein and McElroy moved to dismiss under Fed. R. Civ. P. 12(b)(2) and 12(b)(4), contending Roy had not properly served them and therefore had not acquired personal jurisdiction over them. While the motion to dismiss was pending, Roy, apparently acquiescing to Schornstein's and McElroy's objections regarding his first attempted service and desiring to cure defects in service, obtained summonses for his counterclaim and filed certificates of service on Schornstein and McElroy.
Schornstein and McElroy thereafter filed answers to the counterclaim. Their answers did not raise the issue of sufficiency of service, nor have they challenged either the sufficiency of Roy's second attempt at service or personal jurisdiction. The Court construes their answers as recognizing the validity of Roy's second attempt at service. Even if the Court did not draw this inference, however, Schornstein and McElroy would have waived their Rule 12(b)(2) and 12(b)(4) challenges. While they might have successfully challenged Roy's first attempt at service, under Rule 12(h)(1) they waived their challenge to his second attempt by not challenging it by either a Rule 12(b) motion or raising it in their answer.
Counter-Defendants' Schornstein's and McElroy's motion to dismiss is therefore DENIED.
IT IS SO ORDERED.
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