Judeh v. Louisiana State University System et al

Filing 42

ORDER denying 31 Motion to Recover Costs and Expenses for Service of Process. Signed by Magistrate Judge Karen Wells Roby on 2/20/2013. (caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
HILMI JUDEH

CIVIL ACTION

VERSUS

NO: 12-1758

LOUISIANA STATE UNIVERSITY
SYSTEM, ET AL.

SECTION: “R” (4)

ORDER
Before the Court is Plaintiff, Hilmi Judeh, (‘Judeh”) Motion to Recover Costs and
Expenses for Service of Process (R. Doc. 31), seeking recovery of $300.00 of expenses, as well
as reasonable attorney’s fees, arising in connection with Defendants, Louisiana State University
System, et al.’s, (“LSU”) breach of duty to waive service of process.1 The motion is opposed. (R.
Doc. 36). The motion was heard by oral argument on January 30, 2013.
I.

Background
This case involves a student intern, questionable statements on a Facebook account, and an

allegedly unwarranted dismissal. Specifically, Judeh, a former student at LSU’s School of Public
Health, became an intern at the Louisiana Office of Public Health in New Orleans. (R. Doc. 1, p.
4). Such “practical experience” is required for students in LSU’s Masters of Public Health program.

1

Although “LSU” is referred to herein for purposes of convenience, Judeh’s Complaint indicates that the
specific entity at issue in this suit, the Louisiana Office of Public Health, “is a state agency not operated by [LSU] or the
[LSU] Health Sciences Center.” (R. Doc. 1, p. 5).

Id. at 4-5. Judeh alleges that he was harassed at his internship, complained of the same, and was
subsequently not scheduled for enough hours to complete his degree requirements. Id. Judeh and
LSU agreed it would be best for Judeh to “secure another internship,” and LSU’s faculty internship
coordinator arranged a second internship for Judeh with the LSU Health Sciences Center. Id. at 5-6.
On July 5, 2011, the same day Judeh was to report for his first day at the Health Sciences
Center, several LSU faculty members met to discuss Judeh’s work. Id. at 6. Although Judeh was
not invited to attend the meeting, the faculty members discussed several postings Judeh allegedly
made to Facebook, in which he allegedly “threatened to embarrass a staff member at the Louisiana
Office of Public Heath.” Id. Judeh alleges that “there is an unspoken policy at the School of Public
Health among administrators of dismissing students for misconduct without offering them notice
of allegations of misconduct or affording them an opportunity to be heard in their defense.” Id.
Later that day, Judeh was told to report to the office of an LSU faculty member. Upon
arrival, Judeh was told he was being expelled because he “allegedly made comments indicating that
he planned on destroying data at a former internship.” Id. Judeh appealed his expulsion decision,
which he argues was in contravention of a student policy which guarantees students rights to, inter
alia, a fair and impartial hearing. Id. at 7. The applicable university official allegedly told Judeh,
“I can ask you to leave whenever I want.” Id.
Judeh has brought suit under the Civil Rights Act, 42 U.S.C. § 1983, and claims that LSU
deprived him of his Constitutional rights, including (1) his First Amendment free speech rights, and
(2) his rights to procedural due process. Id. at 8-9. Judeh also claims that LSU breached its
contractual obligations to him based on the plain language of the LSU Student Handbook. Id. at 10.
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Judeh argues that he filed his Complaint against, inter alia, several LSU School of Public
Health faculty members and administrators (“Individual Defendants”).2 (R. Doc. 31-2, p. 1). Judeh
then attempted to secure a waiver of service from two individually named defendants pursuant to
Rule 4(d). Id. However, Judeh argues that she did not receive the waivers within the 30-day period
specified; after this time she contracted with a process server to serve the summonses, which cost
$300.00. Id. at 2. Judeh now seeks the reasonable attorney’s fees and costs incurred after LSU
failed to waive service under Federal Rule of Civil Procedure (“Rule”) 4. The motion is opposed.
II.

Standard of Review
Rule 4(c) provides that “[t]he plaintiff is responsible for having the summons and complaint

served within the time allowed under Rule 4(m).” Id. Rule 4(d) provides that “An individual,
corporation, or association . . . has a duty to avoid unnecessary expenses of serving the summons.
The plaintiff may notify such a defendant that an action has been commenced and request that the
defendant waive service of a summons.” Id. “If a defendant . . . fails, without good cause, to sign
and return a waiver requested by a plaintiff . . . the court must impose on the defendant (A) the
expenses later incurred in making service; and (B) the reasonable expenses, including attorney’s
fees, of any motion required to collect those service expenses.” Rule 4(d)(2).
However, Rule 4(j) provides that “[a] state, a municipal corporation, or any other statecreated governmental organization that is subject to suit must be served by (A) delivering a copy of
the summons and of the complaint to its chief executive officer; or (B) serving a copy of each in the
manner prescribed by that state’s law for serving a summons or like process on such a defendant.”

2

The individual defendants are Stephanie Tortu, Donna Williams, and Joseph Moerschbaecher. Id. at 1.

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Id. The plain language of Rule 4(d) does not apply to Rule 4(j).
III.

Analysis
A.

Waiver of Service - Simultaneous Suit in Individual and Official Capacities

The first issue is whether under Rule 4, service can be waived as to defendants sued
simultaneously in their individual and official capacities. Judeh argues that he may tax the costs
incurred in effecting service, as well as attorney’s fees, on the Individual Defendants, and that after
properly demonstrating his compliance with Rule 4(d), the Court must grant them. (R. Doc. 31-6,
p. 1). He has attached an invoice for the service of process, as well as an “affidavit and verification”
of the attorney’s fees in this case, which total 2.75 hours but do not specify a total fee. (R. Docs.
31-6, 31-7).
In opposition, LSU argues that Rule 4(d) is inapplicable in this case because Judeh has sued
the defendants in their individual capacities, as well as their capacities as LSU employees, and Rule
4(d) does not extend to “a state official sued in his official capacity.” (R. Doc. 36, p. 2). Instead,
service of the summons was required under Rule 4(j), for which the waiver requirements are
inapposite. Id. LSU argues that the policy underlying this rule stems from the necessity that oftsued entities such as the state employ broad-based and centrally controlled risk management policies
for handling lawsuits, of which individual defendants may be unaware. Id. at 3-4. Moreover, the
State of Louisiana has “numerous statutory duties regarding suits against the state . . . even when
the remotest and lowest level of employee is sued.” Id. at 4. “This is especially true when the
former employee is sued for actions during his State employment, but has since left the State of
Louisiana and has no idea that he has been sued in Louisiana.” Id. at 4. For these reasons, the fact
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that the Plaintiff has also brought suit against the Individual Defendants in their official capacities
is sufficient to waive service.
“[T]he most reasonable reading of rule 4 affords state officers facing official capacity suits
the same consideration given to federal officers in the same position.” Moore v. Hosemann, 591
F.3d 741, 747 (5th Cir. 2009); Libertarian Party v. Dardenne, 595 F.2d 215, 219 (5th Cir. 2010) (“A
state official sued in his official capacity is not subject to the mandatory waiver-of-service
provisions of Rule 4(d).”) (quotation omitted). However, a suit against state officials under 4(i) is
not subject to 4(e)’s waiver requirements. Therefore, to the extent that the Individual Defendants
were sued in their official capacities, LSU is correct that the service waiver provisions do not apply.
Nevertheless, the fact that an individual state actor may be sued in his or her official capacity
does not obviate the necessity for appropriate service of process for suit in a person’s individual
capacity. Indeed, “[t]o serve a[n] . . . officer or employee sued in an individual capacity . . .
(whether or not the officer or employee is also sued in an official capacity), a party must . . . also
serve the officer or employee under Rule 4(e), (f), or (g).” Rule 4(i) (emphasis added); cf. Robinson
v. City of Houston, 2011 WL 1806427, at *1 (S.D. Tex. May 11, 2011) (finding that service on
individuals does not effect service on a municipality or its departments). The Court has not found
cases which interpret the plain language of Rule 4 to mean that a defendant sued in his individual
capacity is subject to either Rule 4(j) or Rule 4(i)’s prohibition on waiver of service.3
B.

Proper Service and Good Cause for Failing to Waive Service

The next issue is whether the Individual defendants were properly served for purposes of
3
LSU argues that the Individual Defendants have never been properly served under Rule 4(j). For purposes of
the instant motion, the Court need not consider this argument.

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Rule 4(d). In support of his motion, Judeh argues that he effected service upon the Individual
Defendants by mailing envelopes to each of the Individual Defendants “at the address of the
LSUHSC School of Public Health.” (R. Doc. 31-2, p. 1). In opposition, LSU argues that the
Individual Defendants were never properly served under either Rule 4(j) or Rule 4(e). (R. Doc. 36,
p. 2). LSU also argues that Rule 4(d)(2) is inapplicable to this case. Id. at 1.
LSU argues that even if the Individual Defendants failed to timely return service waivers in
connection with claims brought against them in their individual capacities, Judeh has failed to meet
his burden to show that he properly served the Individual Defendants pursuant to Rule 4(e). At oral
argument, LSU further contended that because the service rules are arcane and difficult for laypeople
to comprehend, it was unreasonable to anticipate that their knowledge of the waiver provisions is
a matter of instinct.
Rule 4(d) provides that a party seeking a waiver from an individual need only request that
the waiver be “addressed to the individual defendant.” Id. “Unlike service of process for purposes
of establishing personal jurisdiction, service of a request for waiver of formal service might be
effective and achieve Rule 4’s goals of minimizing the costs of litigation even if a plaintiff does not
strictly comply with every formalistic requirement of the rule.” Flores v. School Board of DeSoto
Parish, 116 Fed. App’x 504, 508 (5th Cir. 2004).4
Courts elsewhere have deemed a violation to be “technical” where the outcome of the service

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A minority of courts find that compliance with Rule 4(d) is a “condition precedent” to entitlement to recovery,
and that “the rules are not designed to require a factual inquiry prior to making a determination of whether to grant a
motion for failure to waive service. If the plaintiff properly complies with all of the requirements of [Rule 4], then costs
are awarded.” Spivey v. Board of Church Extension and Home Mission of Church of God, 160 F.R.D. 660, 663 (M.D.
Fla. 1995); Farrell v. Woodham, 2002 WL 32107644, at *4-*5 (M.D. Fla. May 29, 2002) (same).

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did not cause the defendant to suffer actual prejudice. See, e.g., Stapo Industries, Inc. v. M/V Henry
Hudson Bridge, 190 F.R.D. 124, 125 (S.D.N.Y. 1999) (finding that plaintiff’s failure to specify a
corporate agent, and merely mailing waiver to company, did not prejudice defendant); Shell v.
American Family Rights Ass’n, 2009 WL 3837890, at *2 (D. Colo. Nov. 13, 2009) (finding that
failure of request to use correct submission date was a “technical violation” which did not prejudice
defendants). The burden to show Rule 4 compliance rests with the applicant. See id. (finding that
service upon attorney, and not party, coupled with failure to provide proof of service, warranted
dismissal of motion for fees). Other courts have noted that even where, as here, a plaintiff includes
a receipt along with his waiver fee, “if the receipt provides no details concerning the documents
delivered,” the plaintiff has failed to meet his burden. Hopper v. Wyant, 2012 WL 5871031, at *1
(10th Cir. Nov. 21, 2012) (Table, text in Westlaw).5
In this case, the waivers were addressed to the Individual Defendants, but were mailed to the
Defendants’ business addresses, not their home addresses, as specified by Rule 4(e). However, the
waivers indicate that “A copy of the complaint is attached.” (R. Docs. 31-3, 31-4, 31-5). Therefore,
as concerns the documentation filed in support of his motion, Judeh has met his burden to show at
least technical compliance with Rule 4.
The next issue is whether, notwithstanding Judeh’s “technical compliance” with the Rule,
Defendants’ nonetheless have “good cause” to justify their failure to return the waiver. Although
LSU has argued that the distinction between bringing suit against a state employee in his or her

5

Where a plaintiff fails to make any attempt to comply with the Rule, motions for fees have been struck. Russell
v. Chase Investment Services Corp., 2009 WL 3254898, at *3-*4 (N.D. Okla. Oct. 7, 2009) (finding that party’s
submission of waiver form via email to corporate defendant’s counsel, which was subsequently forwarded by counsel
to party, violated plain language of Rule which required submission of waiver request to a defendant’s “agent.”).

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“official” and “individual” capacity is legally complex, especially for a layperson, a defendant
ordinarily lacks “good cause” to justify non-compliance with a waiver where the delay in returning
the same is premised upon a “misconception of the law.” Butler v. Crosby, 2005 WL 3970740, at
*3 (M.D. Fla. June 24, 2005 (citing cases). By contrast, where the circumstances indicate genuine
factual confusion, a defendant had good cause for failing to return the waiver. Rollin v. Cook, 2012
WL 2568181, at *2 (N.D. Cal. July 2, 2012) (finding that individual defendants had good cause to
waive service where they were elderly, confused by the purpose of the waiver, and the waiver
contained a different name).
Here, the facts indicate that there may have been genuine confusion regarding the intent of
the waivers. Judeh admitted at oral argument that “as a practical matter” the service waivers had
only been sent to the individuals at their business addresses because Judeh lacked their home
addresses. However, this practical difficulty is compounded by factual ambiguities which were
easily avoidable. For example, each of the three waivers stated that, “[a] lawsuit has been filed
against you, or the entity you represent.” (R. Docs. 31-3, 31-4, 31-5) (emphasis added). Further,
there is no other indication that the service waivers were specifically directed towards the Individual
Defendants in their individual, and not representative, capacities. Judeh failed to include any
communication distinguishing between the individuals’ receipt of the waiver in their individual and
official capacities. Indeed, Judeh failed to even include duplicate copies of the waiver which might
suggest that Judeh intended to bring suit against each individual in more than one capacity.
The Court finds that to the extent that there has been a “technical failure” to mail the waivers
directly to the Individual Defendants and not their offices, that failure, conjoined with the factual
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ambiguity of the notice itself, has clearly prejudiced the Individual Defendants, who might have
been under the impression that they did not need to respond, and as a result are now liable for
payment of attorney’s fees and expenses. In light of this, Judeh should have taken additional
precautions to ensure that the Individual Defendants received adequate notice of their obligations,
and his complete failure to do so amounts to more than a “technical violation.” As such, the Court
finds that the Individual Defendants had “good cause” for not timely returning the service waivers.
Judeh’s request for attorney’s fees and expenses is denied.
IV.

Conclusion
IT IS ORDERED that Plaintiff, Hilmi Judeh, (‘Judeh”) Motion to Recover Costs and

Expenses for Service of Process (R. Doc. 31) is DENIED.
New Orleans, Louisiana, this 20th day of February 2013.

KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

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