Bankr. No.:
99-50465
Adv. No.:
99-5022
Chapter:
7
Date of Decision:
February 3, 2000
Issue:
Whether the defendant's motion to dismiss the adversary should be granted where adversary complaint and subpoena were not served within ten days after the clerk issued the subpoena?
Ruling:
The motion was denied. Federal Rule of Civil Procedure 4(m), which applies to bankruptcy adversary proceedings through F.R.Bankr.P. 7004, gives a plaintiff 120 after a complaint is filed to get it served. Thus, the plaintiff could request an alias summons and serve the complaint as long as her 120 days had not expired. Federal Rule of Bankruptcy Procedure 7004(e) does not impose dismissal of a complaint as a penalty if the complaint and original summons are not served within ten days.
Full Bankruptcy Court Decision:
