23 A 169, 23 B 4595
Plaintiff filed a complaint seeking a finding that its claim against Defendant was nondischargeable pursuant to 11 U.S.C. §§ 523(a)(2)(A) and (a)(4). Pro se Defendant filed a motion to dismiss, arguing both insufficient service of process and failure to state a claim. HELD: Motion granted in part and denied in part. Plaintiff did not file a server’s affidavit within 90 days of filing its complaint, therefore it did not demonstrate that the court had jurisdiction over the Defendant through effective service. Additionally, the CM/ECF system’s transmission of a copy of the complaint to Defendant’s bankruptcy counsel did not accomplish service as required by the Federal Rules. Since Plaintiff failed to prove that Defendant was served within 90 days after the complaint was filed, the court was required either to dismiss the action without prejudice or to order that service be made within a specified time. In its discretion, and in light of the service proven by affidavit about a month before Defendant filed the motion to dismiss, the court denied the motion to dismiss for insufficient service. Next, the court found that, even viewing the allegations of the complaint in the light most favorable to it, Plaintiff failed to state a claim under § 523(a)(2)(A). The court granted the motion as to that count, without prejudice to an amended complaint. Finally, the court denied the motion to dismiss the claim for relief under § 523(a)(4).