The opinion of the court was delivered by: Judge Holschuh
MEMORANDUM OPINION AND ORDER
This matter is currently before the Court on Plaintiff's Motion for Summary Judgment (R. at 4) and Plaintiff's Motion to Strike (R. at 8). For the reasons discussed below, both motions are denied.
I. Background and Procedural History
Plaintiff Caliber Automotive Liquidators, Inc. commenced this action on August 25, 2006 when it filed its Complaint alleging that Defendant Sherry Chrysler Dodge Jeep, Inc. infringed upon its copyrights and trademarks and committed unfair and deceptive trade practices. Plaintiff moved the Court for summary judgment in its favor on December 29, 2006. At the time, Defendant had not yet appeared before the Court in this action. In its Memorandum in Support of the Motion for Summary Judgment, Plaintiff asserted that "Defendant ha[d] improperly failed to answer the complaint." (Mem. Support 2-3.) In an attached affidavit, counsel for Plaintiff stated that Plaintiff had "served Defendant . . . on at least two occasions." (Harvey Aff. ¶ 10.)
On January 16, 2007, Defendant filed a "Limited Appearance to Respond to Plaintiff's Motion for Summary Judgment." (R. at 6.) In its Memorandum in Opposition attached, Defendant informed the Court that it had never been served with a Summons as required by Rule 4 of the Federal Rules of Civil Procedure. Defendant argues that Plaintiff's motion is premature as it was filed before Defendant was required to respond to the Complaint*fn1 and, in any event, the motion should be denied because Defendant is unable to fully oppose the motion without the benefit of discovery.
The Court thereafter issued an Order (R. at 7) noting that Plaintiff had never filed a return of service and that the docket therefore did not reflect that the Complaint and the Summons had been served on Defendant. The time in which the Plaintiff was to serve the Complaint and the Summons had elapsed as of January 20, 2007, the date of the Court's order.*fn2 The Court directed Plaintiff to address the issue of service and, if necessary, move for an extension of time within which to perfect service. Plaintiff's Response (R. at 9) to this Order described its efforts in serving Defendant, none of which included serving a summons or obtaining a waiver of summons as required by Rule 4. On February 1, 2007, the Court, pursuant to Rule 4(m), granted Plaintiff a short extension to allow service to be made. (R. at 10.) The extension allowed Plaintiff to obtain service on Defendant or to obtain and file a waiver of service. On February 14, 2007, Plaintiff filed a Waiver of Service of Summons, signed by the controller of Defendant. (R. at 12.)
A. Plaintiff's Motion for Summary Judgment
The standards for summary judgment are found in Rule 56 of the Federal Rules of Civil Procedure. In its Memorandum in Opposition, Defendant seems to argue that Rule 56(a) forbids Plaintiff from filing a motion for summary judgment before the time within which Defendant must file an answer has elapsed. Defendant is correct that its time to file an answer to the Complaint had not elapsed when Plaintiff filed its Motion for Summary Judgment. Without being served with a summons or returning a waiver of service of summons, a defendant has no obligation under the Rules to answer the plaintiff's complaint. As neither event had occurred when Plaintiff filed its motion, Defendant's time to serve an answer had not elapsed at that time.
Defendant is incorrect, however, to the extent that it contends that Rule 56(a) precludes a plaintiff from moving for summary judgment before the defendant's time for serving an answer has elapsed. Rule 56(a) states that any party seeking to recover upon a claim may move for summary judgment "at any time after the expiration of 20 days from the commencement of the action." Under the Rules, the action commences upon the filing of the complaint with the court. Fed. R. Civ. P. 3. Plaintiff filed its Complaint on August 25, 2006. Because its motion for summary judgment was filed more than four months later, the motion is timely.
Defendant also argues that, Rule 56(a) aside, Plaintiff's motion is premature because there has been no discovery in this action and, as such, Defendant is unable to fully oppose Plaintiff's motion. Rule 56(f) provides:
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
In an affidavit attached to its Memorandum in Opposition, Defendant's controller states that "there has been no discovery . . . in the lawsuit [and it] is unable to respond to the Plaintiff's Motion for Summary Judgment without the benefit of discovery, deposition, or other process ...