Boice-Durant v. Kenner Police Dept, et al

Filing 66

ORDER denying 50 Motion for Reconsideration ; denying 65 Motion for Temporary Restraining Order. FURTHER ORDERED that no later that 8/1/13 pla shall file into the record a return of service demonstrating that service on dft Braud has been perfected under Rule 4(e). Failure to comply with this deadline will result in pla's claims against dft Braud being dismissed under Rule 4(m). Signed by Judge Susie Morgan. (cbn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TIMOTHY BOICE-DURANT,
Plaintiff

CIVIL ACTION

VERSUS

No. 12-603

KENNER POLICE DEPARTMENT, et al.,
Defendants

SECTION “E”

ORDER AND REASONS
Before the Court are two motions filed by plaintiff Timothy Boice-Durant (“BoiceDurant”): (1) Boice-Durant’s request for reconsideration1 of the Court’s March 28, 2013
Order (the “March 28 Order”),2 in which the Court denied Boice-Durant’s motion for an
entry of default3 and Boice-Durant’s motion for default judgment4 against defendant
Russell Braud (“Mr. Braud”); and (2) Boice-Durant’s motion for a “Federal Order of
Restraint.”5 For the reasons set forth below, both motions are denied.
I.

Boice-Durant’s Motion to Reconsider

As the Court explained in the March 28 Order, Boice-Durant served a copy of his
complaint against Mr. Braud on Allyson Bourgeois, the Clerk of the City Court for the City
of Thibodaux, Louisiana. The Court explained that this is not sufficient under federal or
state law regarding service on an individual, and, because Boice-Durant had yet to perfect
service on Mr. Braud, neither an entry of default nor a default judgment against Mr. Braud
1

R. Doc. 50.

2

R. Doc. 47.

3

R. Doc. 36.

4

R. Doc. 37.

5

R. Doc. 65.

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was appropriate. In his motion to reconsider, Boice-Durant now argues that Ms. Bourgeois
is the secretary of Mark Chiasson, a Thibodaux City Court judge and an attorney who
represented Mr. Braud in the past. However, not only has Boice-Durant failed to provided
any evidence that Ms. Bourgeois is, in fact, Mr. Chiasson’s secretary, the Court notes that
even if she is Mr. Chiasson’s secretary, Boice-Durant’s service of the complaint on Ms.
Bourgeois is nevertheless insufficient because there is no proof that Ms. Bourgeois or Mr.
Chiasson is Mr. Braud’s agent for service of process. As a result, Boice-Durant has yet to
perfect service on Mr. Braud, and thus there is no basis for the Court to reconsider the
March 28 Order denying Boice-Durant’s motions for entry of default and default judgment
against Mr. Braud.
Accordingly, IT IS ORDERED that Boice-Durant’s motion to reconsider be and
hereby is DENIED.
In the March 28 Order, the Court ordered Boice-Durant to show good cause why his
claims against Mr. Braud should not be dismissed under Rule 4(m) for failure to perfect
timely service of his complaint on Mr. Braud. The Court construes Boice-Durant’s motion
to reconsider as a timely filed written response to this show cause order. However, the
Court reiterates that Boice-Durant still has not perfected service on Mr. Braud under Rule
4(e). The Court will give Boice-Durant one final opportunity to perfect service of his
complaint on Mr. Braud under any of the four options contained in Rule 4(e).6
6

Rule 4(e) provides that
Unless federal law provides otherwise, an individual—other than a minor,
an incompetent person, or a person whose waiver has been filed—may be
served in a judicial district of the United States by:
(1)

following state law for serving a summons in an action
brought in courts of general jurisdiction in the state

2

Accordingly, IT IS FURTHER ORDERED that, no later than August 1, 2013,
Boice-Durant shall file into the record a return of service demonstrating that service on Mr.
Braud has been perfected under Rule 4(e). Failure to comply with this deadline will result
in Boice-Durant’s claims against Mr. Braud being dismissed under Rule 4(m).
II.

Boice-Durant’s Motion for Federal Order of Restraint

This is the third motion Boice-Durant has filed seeking relief under Federal Rule of
Civil Procedure 65. As with Boice-Durant’s first and second motions,7 which sought
preliminary injunctive relief under Rule 65(a), instead of a temporary restraining order
under Rule 65(b) as sought in the instant motion, Boice-Durant’s motion is difficult to
understand. It appears Boice-Durant is requesting the Court issue an order restraining
certain of the defendants from using their police radios, but the Court cannot discern any
legal or factual basis for such an order. Furthermore, Boice-Durant’s motion does not
comply with the technical requirements for the issuance of a restraining order under Rule

where the district court is located or where service is
made; or
(2) doing any of the following:
(A)

delivering a copy of the summons and of
the complaint to the individual
personally;

(B)

leaving a copy of each at the individual's
dwelling or usual place of abode with
someone of suitable age and discretion
who resides there; or

(C)

delivering a copy of each to an agent
authorized by appointment or by law to
receive service of process.

FED. R. CIV. P. 4(e).
7

See R. Doc. 38; R. Doc. 39.

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65(b).
Accordingly, IT IS FURTHER ORDERED that Boice-Durant’s motion for a
“Federal Order of Restraint” be and hereby is DENIED.

17th
New Orleans, Louisiana, this ____ day of June, 2013.
__________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

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