IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

GREGORY JOHNSON and PATRICIA )

MALONE, )

)

Plaintiffs, )

)

vs. ) CIVIL ACTION NO. 05-0380-P-D

)

GUSTAV WEEKE MASCHINENBAU )

GmbH; GLEASON REEL CORPORATION; )

REXEL ELECTRICAL SUPPLY )

COMPANY, INC., )

)

Defendants. )

ORDER ADOPTING THE REPORT

AND RECOMMENDATION OF THE MAGISTRATE JUDGE

Pending before this court is a Report and Recommendation of the Magistrate Judge made

pursuant to 28 U.S.C. § 636(b)(1)(B), and dated July 21, 2005, in this tort action filed by plaintiffs

Gregory Johnson and Patricia Malone against defendants Gustav Weeke Maschinenbau GmbH,

Gleason Reel Corporation (“Gleason Reel”), and Rexel Electrical Supply Company, Inc., and removed

from the Circuit Court of Baldwin County, Alabama, to this federal district court pursuant to 28 U.S.C.

§ 1332 (doc.12). The Magistrate Judge recommends that the Motion to Dismiss filed by defendant

Southern Electric Supply Company, Inc., d/b/a Rexel Wholesale (incorrectly identified in the complaint

as Rexel Electrical Supply Company, Inc.) (“Rexel”) be denied.

After due and proper consideration of all portions of this file deemed relevant to the issues

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raised, with no objection to the Report and Recommendation having been made, the Report and

Recommendation of the Magistrate Judge is hereby ADOPTED as the opinion of this court.

Accordingly, it is ORDERED that Motion to Dismiss filed by Rexel (doc.4) be and is hereby

DENIED. This action will proceed.

This court notes that responsive pleadings, i.e., Answers, have been filed by defendants

Gleason Reel (doc.2), and Rexel (doc.3). On July 18, 2005, plaintiffs filed a “Complaint” correcting

the insufficiency in their original action which was the subject of Rexel’s Motion to Dismiss (doc.11). 

On August 10, 2005, Gleason Reel and Rexel filed a Joint Motion For Extension of Time to

File Rule 26(f) Report (doc.13). Defendants requested an additional thirty days within which to hold

their meeting. Id. On August 12, 2005, the Magistrate Judge granted the Motion affording the parties

until September 12, 2005, to file their report of the parties planning meeting (doc.14). 

This court notes, however, that the Rule 16(b) Scheduling Conference has not yet been set. It

is this court’s long-standing policy and practice to delay the Rule 16(b) Scheduling Conference until all

named parties have filed responsive pleadings. To date, there has been no responsive pleading filed by

named defendant Gustav Weeke Maschinenbau GmbH. Moreover, there is no evidence of record that

service of process upon defendant Gustav Weeke Maschinenbau GmbH, has been perfected, if

executed, and a meeting between two of three-named defendants would be premature.

Therefore, it is further ORDERED that on or before September 9, 2005, plaintiffs are to file the

return of service reflecting service of process upon defendant Gustav Weeke Maschinenbau GmbH, or

show cause in writing for their failure to execute service of process upon defendant Gustav Weeke

Maschinenbau GmbH. 

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For the reasons set forth herein, the September 12, 2005 deadline for the parties to meet and

to file their report of the parties planning meeting is hereby rendered MOOT. 

DONE this 25th day of August, 2005.

 S/Virgil Pittman 

SENIOR UNITED STATES DISTRICT JUDGE

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