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ANDERSON v. HALL

January 3, 1991

LINDA D. ANDERSON, Plaintiff,
v.
WILLIAM M. HALL, SANDY V. LEE, EDWIN L. HARVEY, and LEE & HARVEY, Defendants



The opinion of the court was delivered by: HARRIS

 This matter is before the Court on the motion to dismiss of defendants William M. Hall, Sandy K. Lee, Edwin L. Harvey, and Lee & Harvey, on the motion of plaintiff to permit discovery as to the indispensable party aspect of defendants' motion to dismiss, and on the Court's sua sponte motion to dismiss for insufficient service of process.

 Background

 For purposes of this motion to dismiss, the following facts alleged by plaintiff are taken as true. See Doe v. United States Dep't of Justice, 243 U.S. App. D.C. 354, 753 F.2d 1092, 1102 (D.C. Cir. 1985). Plaintiff was struck in the mouth by one Roger Clark following a date gone awry. She filed a criminal complaint, and a Maryland state court ordered Clark to pay her medical bills. To further recover for her injuries, plaintiff wished to pursue civil remedies for Clark's tortious conduct. Through defendant Hall, an associate at the law firm of Lee & Harvey of which the individual defendants Lee and Harvey are partners, she retained Lee & Harvey to represent her in a civil action against Clark. However, defendants failed to file an action before the expiration of Maryland's one-year statute of limitations.

 To recover for damages resulting from defendants' alleged failure to file a lawsuit, plaintiff has filed this action alleging negligence, breach of contract, and breach of fiduciary duty. She also alleges negligent supervision on the part of defendants Lee and Harvey for their alleged failure to properly supervise defendant Hall. Plaintiff has also named the partnership itself, Lee & Harvey, as a defendant.

  Karl Carter was plaintiff's attorney at the time the complaint was filed. *fn1" Don King, now a member of Carter's law firm, and Carter were both employees of Lee & Harvey at the time plaintiff allegedly retained the firm. Defendants contend that at all times relevant to plaintiff's claim, throughout the one-year statute of limitations period, Carter and King were the only Lee & Harvey employees who were ever in possession of plaintiff's file. Defendants further contend that they expressly told both King and Carter not to accept plaintiff's tort claim, and to advise her of the one-year statute of limitations. Any improper handling of plaintiff's case, defendants reason, resulted from the conduct of King and Carter. Defendants also suggest that the lawsuit presently before the court was brought by Carter to harass Lee & Harvey for the circumstances surrounding his departure from that firm. *fn2"

 Discussion

 Defendants have moved to dismiss the complaint on several grounds, pursuant to Federal Rule of Civil Procedure 12(b). They allege lack of subject matter jurisdiction, insufficient service of process, failure to join indispensable parties, and failure to state a claim upon which relief can be granted.

 Lack of Subject Matter Jurisdiction

 Defendants contend that there is no complete diversity, as required under 28 U.S.C. ยง 1332, because plaintiff, a citizen of the District of Columbia, has named a District of Columbia partnership, Lee & Harvey, as a defendant.

 Unlike corporations, which are fictitious entities recognized by the state, partnerships have no legal existence in the District of Columbia, and are not jural entities capable of suing or being sued. Affie, Inc. v. Nurel Enters., Inc., 607 F. Supp. 220, 221 (D.D.C. 1984). Thus, plaintiff's claim against the partnership must be dismissed, and the diversity question is irrelevant. See id. at 222 (dismissal of claim against defendant partnership made motion to dismiss for lack of diversity jurisdiction immaterial). Accepting plaintiff's uncontested allegations that the remaining three defendants are Maryland citizens, and that plaintiff is a citizen of the District of Columbia, diversity jurisdiction remains intact.

 Insufficient Service of Process

 Defendants move for dismissal of the claims against the individual defendants Lee and Harvey on the grounds of insufficient service of process. *fn3" The defendants contend that service was not sufficiently prompt because they had not been served as of the time that the motion to dismiss was filed. Federal Rule of Civil Procedure 4(j) provides only that defendants must be served within 120 days after the filing of a complaint. However, defendants filed their motion to dismiss less than three weeks after plaintiff filed her complaint. Thus, defendants' motion was premature. According to the record now before the Court, however, defendant Lee was served within the 120-day limitation, but defendant Harvey was not. *fn4" ...


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