Diaz v. Brown

Filing 15

ORDER & REASONS granting 7 Motion to Dismiss Case; granting 12 Motion to Dismiss Case. Signed by Judge Helen G. Berrigan on 8/3/2011. (mm, ) Modified doc type on 8/3/2011 (mm, ).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CARROLL GENE DIAZ

CIVIL ACTION

VERSUS

NO. 11-1127

DANIEL P. BROWN

SECTION: “C” (4)
ORDER AND REASONS1

Before the Court is Defendant’s Motion to Dismiss pursuant to Federal Rules of Civil
Procedure 12(b)(2), 12(b)(3), and 12(b)(5). (Rec. Doc. 7); (Rec. Doc. 12). Plaintiff opposes the
motion. (Rec Doc. 13). This Court has considered the memoranda of counsel, the record, and the
applicable law, and GRANTS the motion for the following reasons.

BACKGROUND
Plaintiff Carroll Gene Diaz (“Diaz”), proceeding pro se and in forma pauperis, filed a
complaint for patent infringement against Daniel Brown (“Brown”) on May 16, 2011. (Rec. Doc.
1). Diaz, a citizen of Thibodaux, LA, did not obtain a waiver of service but instead mailed a copy
of his complaint to Brown, a citizen of Palos Park, IL, via certified mail. (Rec. Doc. 7-4). However,
Diaz did not include a copy of the summons issued by this Court on May 17, 2011 with the
documents he mailed to Brown. Id. Also, Diaz failed to include a statement of the grounds for this
Court’s jurisdiction in his complaint. (Rec. Doc. 1). Subsequently, Brown filed a motion to dismiss.
(Rec. Doc. 7); (Rec. Doc. 12).

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Greg Feeney, a second year student at Loyola University New Orleans College of Law, assisted in the
preparation of this order.

LAW AND ANALYSIS
a. Insufficient Service of Process
Pursuant to rule 4(e)(1) of the Federal Rules of Civil Procedure, “an individual . . . may be
served in a judicial district of the United States by following state law for serving summons in an
action brought in courts of general jurisdiction in the state where the district court is located or
where service is made.” Fed R. Civ. P. 4(e)(1). Under Louisiana law, service of process over a nonresident is proper when “a certified copy of the citation [ . . .] and of the petition [. . .] shall be sent
by counsel for the plaintiff, or by the plaintiff if not represented by counsel, to the defendant by
registered or certified mail.” La. Rev. Stat. § 13:3204. In this case, there is no indication that Diaz
included a copy of the summons with the complaint that he mailed to Brown. (Rec. Doc. 7-4).
Thus, Brown did not receive sufficient service of process. The Court would generally allow Diaz
to rectify the lack of sufficient service of process, however, because the Court additionally finds
improper venue, dismissal is the proper course of action.
b. Improper Venue
“Any civil action for patent infringement may be brought in the judicial district where the
defendant resides, or where the defendant has committed acts of infringement and has a regular and
established place of business.” 28 U.S.C. § 1400(b). Brown neither lives in Louisiana, nor has an
established place of business in Louisiana. (Rec. Doc. 7-5 at 2). Thus, venue in the Eastern District
of Louisiana is improper. See Kabb, Inc. v. Sutera, 1992 WL 245546 (E.D. La. Sept. 4, 1992)
(holding in a patent infringement suit that venue in the Eastern District of Louisiana was improper
because the defendant did not have a “regular and established place of business” in that district).

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In order to pursue this law suit, Diaz will have to re-file his complaint in a district where venue is
proper and give sufficient service of process to Brown.
c. Personal Jurisdiction
Because the Court has found insufficient service of process and improper venue, the Court
will not discuss whether there is personal jurisdiction over Brown.

CONCLUSION
Accordingly,
IT IS ORDERED that Defendant’s Motion to Dismiss is GRANTED without prejudice.
(Rec. Doc. 7); (Rec. Doc. 12).
New Orleans, Louisiana this 3rd day of August, 2011.

________________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE

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