David Lee McMurrian, Sr. v. General Dynamics Corporation and General Dynamics-OTS, Inc.

Summary

The United States District Court for the Western District of Arkansas reviewed objections to a magistrate judge’s order concerning a motion to set aside an entry of default and dismiss for insufficient service. After de novo review, the court adopted the magistrate judge’s reasoning, upheld the setting aside of default, and denied dismissal because the plaintiff was allowed to cure service defects and file a third amended complaint.

Holdings

1. The district court treated the magistrate judge's order as though it had been filed as a report and recommendation and conducted de novo review.
2. Dismissal was properly denied because the service defect was curable, Plaintiff was given time to perfect service and file a third amended complaint, and Plaintiff filed the third amended complaint by the deadline; the dismissal request was therefore moot.
3. The clerk's entry of default was properly set aside because General Dynamics Corporation had not been properly served.

Questions Presented

1. Whether the district court should review the magistrate judge's order as a report and recommendation after Plaintiff objected to the magistrate judge's authority to deny dismissal.
2. Whether dismissal for insufficient service of process was proper when service was deficient but potentially curable and the plaintiff was given an opportunity to re-serve the defendant and file an amended complaint.
3. Whether the clerk's entry of default should be set aside because General Dynamics Corporation had not been properly served.

Disposition

other